The Making of a European Constitution: Dynamics and Limits of the Convention Experience

Sonja Puntscher Riekmann · Wolfgang Wessels (Eds.) The Making of a European Constitution

Sonja Puntscher Riekmann Wolfgang Wessels (Eds.)

The Making of a European Constitution Dynamics and Limits of the Convention Experience

Bibliografische Information Der Deutschen Bibliothek Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar.

This publication has been financially supported by the Austrian Ministry for Education, Science, and Culture as well as the Austrian Research Association.

. . 1. Auflage Juni 2006 Alle Rechte vorbehalten © VS Verlag für Sozialwissenschaften | GWV Fachverlage GmbH, Wiesbaden 2006 Lektorat: Frank Schindler / Tanja Köhler Der VS Verlag für Sozialwissenschaften ist ein Unternehmen von Springer Science+Business Media. www.vs-verlag.de Das Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlags unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Die Wiedergabe von Gebrauchsnamen, Handelsnamen, Warenbezeichnungen usw. in diesem Werk berechtigt auch ohne besondere Kennzeichnung nicht zu der Annahme, dass solche Namen im Sinne der Warenzeichen- und Markenschutz-Gesetzgebung als frei zu betrachten wären und daher von jedermann benutzt werden dürften. Umschlaggestaltung: KünkelLopka Medienentwicklung, Heidelberg Druck und buchbinderische Verarbeitung: Krips b.v., Meppel Gedruckt auf säurefreiem und chlorfrei gebleichtem Papier Printed in the Netherlands ISBN-10 3-531-14970-9 ISBN-13 978-3-531-14970-7

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Contents

European Constitutionalism at the Crossroads . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Sonja Puntscher Riekmann and Wolfgang Wessels Part I: The Making of a European Constitution: Processes and Methods The Constitutionalisation of the European Union – Without the Constitutional Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Anne Peters Getting to a European Constitution: From Fischer to the IGC . . . . . . . . . . . . . .68 Brigid Laffan The Convention Method: An Institutional Device for Consensus-building . . . .90 Florian Oberhuber Deliberation and Compromise in the Shadow of Bargaining The Convention Method as a Test for EU System Development. . . . . . . . . . .120 Andreas Maurer The Dynamics of the Two-Level Process of Constitution Building Setting the Agenda by Agenda Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156 Thomas König Part II: The Making of a European Constitution: Influences and Perceptions The Impact of Constitutional Traditions on the EU-Reform Discourse in Austria, France, Germany and the UK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175 Bruno Scholl Political Elites and the Future of Europe: The Views of MPs and MEPs . . . .200 Marcelo Jenny, Johannes Pollak and Peter Slominski Publicized Discourses on the Post-Nice Process . . . . . . . . . . . . . . . . . . . . . . .216 Andreas Maurer The Ratification of the Constitution and the European Public Sphere . . . . . . .249 Monika Mokre

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European Constitutionalism at the Crossroads Sonja Puntscher Riekmann and Wolfgang Wessels

1. Introduction: Writing a Book on European Constitutionalism in Times of Crisis The European Constitution is declared dead by many. After the negative referendums in France and the Netherlands The Economist 1 reproduced on its frontpage Jacques-Louis David’s picture of the French revolutionist and Montagnard Marat stabbed to death in his bath tub by the Girondiste Charlotte Corday. The symbolism of this picture is quite demanding in its sophistication as perhaps not many readers might recall that among other issues the row between Montagnards and Girondistes was one about centralisation and decentralisation, in terms of today’s debate, about federalism and intergovernmentalism. Using Marat’s death to signify the current crisis of the European Union appears to convey a rather clear message: It is not only the Constitution to have died, but with it the vision of a federal Europe. As a matter of course, The Economist welcomes this death despite its support for a European constitution in general2. Regardless of symbolisms, only few may be in doubt about the gravity of the French (54%) and Dutch (64%) Noes resulting from two plebiscites in spring 2005: Be they joyful detractors or dismayed promoters, both sides seem aware of a historic turning point. At the same time, though, both seem rather perplexed with regard to new perspectives. Both sides engage in a work of diverging interpretations about the true meaning of the Noes, while agreeing on the truism of an elitepeople-divide. However, first-hand analyses of motivations have shown important differences within the two national constituencies concerned: The French No appears to be rooted in widespread anxieties about unemployment and a negative economic development under the constraints of global markets, whereas reasons

1 2

The Economist, June 4th-10th 2005 and Leader “The Europe that died. And the one that should live on”, p.11-12. Cf The Economist’s own draft of a European Constitution published in 2000 26.10. in which it conceded only few but very strong competences to the EU in particular with regard to monetary and security issues while most policies would remain prerogatives of the Member States.

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for the Dutch rejection of the Constitutional Treaty are to be found in a lack of information as well as in fears about a loss of national sovereignty3. Yet, when the referenda were conceived and announced a year earlier large majorities in these as in most other member states were in favour of the European Constitutional Treaty just as two thirds of European citizens had been professing a positive stance with regard to a European constitution in general.4 Thus, something must have happened which a year earlier almost nobody believed would happen and, its inevitability becoming obvious, nobody could foreclose. How come that in two founding member states such large majorities in highly significant turnouts (almost 70% in France and 63% in the Netherlands) reject a Treaty apt to contitutionalise the European powers by enhancing democratic structures as well as their efficiency, while only few new competences were transferred onto the supranational polity? Why have these citizens rejected a constitution containing a Charter of Fundamental Rights and a more transparent structure of powers embedded in a system of checks and balances? Why have they turned down a text in which for the first time they explicitly appear as one source of legitimacy and they are granted the right of direct influence on European politics due the newly created “citizens’ intitative”?5 The history of the European Union has been described as a tale of pendulum swings (Wallace 2000). Are the negative referendums just a swing back as we have repeatedly witnessed in the past or is it the sign of a more fundamental change? Claus Offe (2001) has argued the constitutionalisation of the European polity to be an improbable outcome, because in history the taming of power by constitution has always occurred in a (sometimes revolutionary) rejection of a political system that the subjects would consider detrimental to their freedoms and hence illegitimate. Thus, Offe continues, as nobody is feeling oppressed by the Union such revolution and subsequent constitutionalisation of power would simply not occur. However, could the current denial by French and Dutch majorities not also be interpreted in another vein, i.e. as a crypto-revolutionary attitude against the political system which is perceived, if not as illiberal, as intransparent and non-responsive? To put it differently: Europeans may perhaps not feel oppressed as in absolutist monarchies or in tyrannies, but they certainly criticise that they have little or no voice in the system and thus revoke their permissive loyalty by rejecting the Constitutional Treaty. We may therefore ask, whether we are witnessing a sort of “constitutional moment” by negation. And if this were true, what does it entail? The political forces advoca3 4 5

Cf Flash Eurobarometer 171 and 172. Flash Eurobarometer 159, 21 Art. I-1 and Art. I-47, 4.

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ting the No have not presented an alternative plan, unless proposals of re-nationalisation of European politics by left and right souverainistes are to be deemed as alternative. How then should the incumbent political elites react? As of now, these elites seem quite at a loss, their crisis management being void of a clear will. The summit of 16-17 June 2005 produced no more than a period of reflection and a continuation of the ratification process, whereas for the time being a revision of the Constitution at hand is not envisaged6. In their press conference after the summit the presidents of the three main EU-institutions, European Council, Commission and Parliament, evoked what they called a “plan D” wherein the D was to signify Democracy, Dialogue and Debate as their reading of the results of the referendums was that the French and Dutch Noes were not meant as a rejection of the text of the constitution but of the context in which it was negotiated. In his speech to the European Parliament on 23 June 2005, the British Prime Minister and soon-to-be Council President Tony Blair argued in a similar vein, when speaking about the need of a “reality check” and a re-orientation of European policy-making towards the citizens’ worries about “globalisation, job security, pensions and living standards”. In his analysis Blair did not, however, spot a crisis of political institutions, but a “crisis of political leadership”. He then presented a policy-oriented programme of the British presidency without ever mentioning the Constitutional Treaty again or, for that matter, without sketching further steps to overcome the constitutional stalemate7. The Austrian presidency of the first half year 2006 emphasized the importance of the constitutional question but also renounced any concrete proposals for its future. However, the lack of leadership being widely complained in the media8, doubts about the perspective of this strategy loom large. Moreover, until now it remains quite unclear what is to be understood by “change of context”, let alone how a consensus among 25 member states might be reached on relevant issues such as European policies improving job creation, social security or living standards. The difficulties in implementing the “Lisbon strategy”, advocated by Blair in his speech, tell an impressive story about the limits of the Open Method of Coordination among member states. The European Parliament on the other hand seems much more aware of the need to tackle the constitutional impasse. On 19 January 2006 the European Parliament adopted a resolution on the period of reflection proposing some very concret

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7 8

European Council, Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty Establishing a Constitution for Europe, Brussels, 16 and 17 June 2005, SN 117/05. Full Text of Tony Blair’s speech to the European Parliament on 23 June 2005, http:// www.number-10.gov.uk/output/Page7714.asp, 2005-10-24. Peter Sutherland, Financial Times, June 16, 2005.

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measures to overcome the constitutional stalemate as well as a timetable for ratification of the new Constitutional Treaty which should enter into force in 2009. In particular the EP stresses the need for a “European dialogue” to be held together with national parliaments in so-called parliamentary forums. These forums “should be conducted and coordinated across the Union, structured by common themes and in realistic stages accorded to an agreed framework for evaluation, and designed to lead to decisive political choices”. The EP should play a leading role by publishing “European Papers” on important issues which may be used as “a common European template for national debates”. The first Parliamentary Forum should take place in Spring 2006 on a number of priority questions such as the goal and finalité as well as the social model and the finances of European Union. The Parliamentary Forums should be complemented by “Citizens Forums” to be organised by parties and civil society organisations. (European Parliament 2006) The introduction at hand is being written in the shadow of this crisis. Obviously, the pendulum has swung back to pessimism. Analysing the reasons of the rejection of the Constitution is all but easy, the reasons being rather diverse as were the proponents of the No. While the left in France (composed of far-left and of social-democratic forces) advocated rejection on the grounds of anti-globalism and the detrimental socio-economic consequences for the French social model which is deemed as the model for the Union, the French far-right exposed her well-known anti-European nationalistic obsessions. Nationalism appeared to be one important feature of the Dutch No as well, whereas counter-intuitively the will to sanction the incumbent government was of greater importance in the Netherlands than in France. Moreover, in both member states the promoters of the Constitutional Treaty entered the arena of public debate rather late and half-heartedly proposed arguments which were far less forceful than those of the opponents. Thus, the electorate must have doubted the seriousness of national elites about the issue. On both sides the fear card was played: While Chirac invoked a Yes because rejecting the constitution would bring damage to the position of France in Europe, the No advocates pictured the Union and the constitution as a means to usher in neo-liberalism into the French system thus jeopardising the welfare achievements of the post-war period. Interestingly, Chirac’s advocacy of Turkish membership allegedly adding to the euro-scepticism of the French citizens and fears about undermining the principle of laicité played a minor role. Remarkably though, in 2005 the French constitution was amended by a provision stating that future enlargements have generally to be ratified by referendum (Article 88/5). As if the negative constitutional referendums were not enough, the highly controversial negotiations of the next European budget were broken off at the summit of 16-17 June 2005 as the “budget barons”9 were unable to find an agreement on

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the CAP under the conditions of the latest enlargement and the British rebate. However, an intergovernmental compromise was reached at the summit of Brussels in December 2005 to be approved by the European Parliament which at the beginning of 2006 voiced a series a diverging interests.10 Future enlargements by Bulgaria and Romania in the foreseeable future, and eventually by Turkey and Croatia – ambitious enterprises at the best of times – seem highly problematic under these circumstances. An overstretch of European integration at this time could put the whole European project at risk. When this book was conceived as a result of a larger project on constitutional strands in Europe, the Union was in the midst of a new Treaty reform. In spite of the usual difficulties to reach a compromise in the IGC, optimism was justified after the generally positive experience with the Convention which in June 2003 had managed to propose a new and coherent Treaty Establishing a Constitution for Europe. The Treaty offers new institutional provisions, integrates the Charta of Fundamental rights elaborated by a previous Convention in 2000, formalises some para-constitutional principles such as the supremacy of European law with regard to national law and spells out the Union’s competences as well as those of Member States with greater clarity than in the past. However, since its conclusion and subsequent adoption by the European Council in Rome 2004 as well as a series of positive ratifications by national parliaments and a positive plebiscite in Spain (74%) the future of the Treaty has become rather gloomy again. Even the positive referendum in Luxemburg (56,5%), which occurred under compulsory participation and after the negative votes in France and the Netherlands on 10 of July 2005, could not change the general mood in Europe. By this introductory chapter, we will pursue two aims: We will, first, present an analysis of the constitutional treaty under ratification regardless of further developments. Being a book on more general features of European constitutionalism in which we look at traditions as well as future perspectives such analysis may be justified by the desire to deliver instruments of understanding of the ongoing controversies as well as of the continuities and discontinuities enshrined in the document. It is, for that matter, important to recall that the Treaty establishing a Constitution for Europe (TCE) is not and never has been intended to be a totally new draft. To a great extent the TCE has been designed in line with the evolutionary character of past treaty revisions however extending the powers of organs, adding some new institutions, re-shaping and reducing procedures, and melting the three pillars into one (Puntscher Riekmann 2005). 9 George Parker, Financial Times, June 16, 2005, p.11. 10 Cf. Agence Europe, January, 16, 2006.

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We will, second, interpret the results in the vein of two theoretical approaches focusing on the question how far these sustain the theories of fusion and of federalism. With regard to fusion theory the thesis presented here is that the ambiguities inherent in the TEC continue the fundamental pattern of EU construction based on two seemingly divergent, but in reality dialectical strategies of increasing the efficiency of EU institutions and of preserving a high degree of national participation. From this dialectics, we argue, emerges the living constitution in which actors are likely to set further initiatives that foster the integration process and that will be incorporated into the treaty at the next revision (Wessels 2005). Moreover, this process as in the past may add to the federal structure of the European Union even if European federalism remains ways from constituting a stable finalité (Follesdal 2005) as recent challenges to Monetary Union and the Stability and Growth Pact have demonstrated (McKay 2005).

2. Old Treaties, New Constitution? Our starting point is that the Treaty establishing a Constitution for Europe is a twofold endeavour: While building on the existing Treaties, it operates with the term “Constitution” and thus opens up for new interpretations of the nature of the European polity as it refers to a terminology commonly associated with state formation. However, this connotation does not reflect the reality of the European Union, which up to now is not a full-fledged state and perhaps never will be at least in the sense of the nation state as we have come to know it since the 19th century. It does though pay tribute to the fact, that the Union has a specific legal nature resulting from a continuous process of integration and administrative fusion (Wessels 2005) which in more than fifty years has generated a polity displaying in some respects state-like characteristics. It is this reality which justifies the calls for a constitution. Yet, the combination of the terms “Constitution” and “Treaty” indicates the persisting double nature of the Union as a polity in its own right and at the same time as a construction “at the mercy” of the member states as masters of the treaties. Thus, the new text continues to be an example of oscillations between supranationalism and intergovernmentalism, although the latter in some respects appears in new clothes giving reasons for new theoretical terminology such as “supranational intergovernmentalism” (Griller 2003). In particular with regard to the re-design of the European Council and its presidency to be held by a person without national position for two and a half years may buttress this approach. Moreover, given the broad and longterm political resistance against the use of the term “constitution” for the European Union it is no exaggeration to attribute special importance to its incorporation in the

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Treaty. Yet, speculations about whether a Treaty establishing a Constitution for Europe ceases to be a classical international treaty in the very moment the Constitution is established still belong to the realm of hermeneutic fantasies. They are contradicted by the articles reiterating the power of the member states.

3. Values, Norms and Identities In spite of legal scepticism as to the “constitutional lyrics” of preambles it is worth mentioning how the founding fathers and mothers in the Convention have phrased the norms and values on which the Union shall be based. These norms and values do indeed recall strategies of identity-building which were professed by the nationstates during their integration processes throughout the last two centuries. It is all the more important to point to them as, for instance, the question whether the preamble should or should not contain a reference to god or Christendom has for quite some time puzzled the Europeans within and without the Convention. The final decision to refer to the “cultural, religious and humanist inheritance of Europe” (Preamble, Para 5) instead might be taken as evidence for the convergence of the Conventionalists towards a more neutral stance in this respect. Other parts of the preamble reiterate the aforementioned dialectics of Europeanism and nationalism: “remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their former divisions and, united ever more closely, to forge a common destiny.” Interestingly, the constitution relegates the principle of “ever closer union” to the preamble, whereas the existing TEU mentions it in Article 1. In the new Article I-1, while constituting a double source of legitimacy residing in the will of the citizens and of the European states, the states are indeed the important actors which “confer competences to attain objectives they have in common”. In a previous version of the draft the Article mentioned the term “in a federal way” which was replaced by “on a community basis”. Thus, there seems to be consensus that the “common destiny” is not (yet) to be associated with the explicit idea of federalism. The vision of the common destiny, though, goes hand in hand with ambitious, if pathetic missions: “Europe offers (…) the best chance of pursuing (…) in awareness of their responsibilities towards future generations and the Earth, the great venture which makes it a special area of hope” (Preamble, Para 4)11. Such wording airs the pathos of discourses resembling the “creeds” of nation states. In particular, the idea of Europe as “a special area of hope” does to an extent recall the 11 This mission is taken up in the Preamble of the Charter of Fundamental Rights (Part II TEC) and recurs as a principle for “external action” in Art. III-292 (1).

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famous “pursuit of happiness” appearing in the American Declaration of Independence of 1776. Whether this and the following catalogue of values suits the identity building process European leaders profess to envisage remains an open question. Confronted with the reality of criticism and disappointment the citizens articulate in opinion polls and, for that matter, in referenda scepticism looms large in particular with regard to the emergence of a habermasian “constitutional patriotism” (Habermas 1992). For the time being the idea of an ever stronger “transfer of loyalty” which for Haas (1958) is part and parcel of a successful integration process seems questioned even by the elites, let alone the European public. The will to construct stronger bonds between the Union and its citizens surfaces also in articles dealing with the “Symbols of the Union” (Art. I-8) as well as in the frequent references to the notion of solidarity which appears no less than 30 times throughout the text of the TCE. As European politics has been conceived in the light of solidarity since the ECSC one could argue that strategies of constructing a supranational “imagined community” have existed from the very beginning of the integration process. It seems, however, that the articles stating the principles of and organising the democratic life of the Union might deliver more powerful instruments for such goal. Strengthening the European Parliament as the only directly elected institution at the European level as well as empowering national parliaments to intervene in the supranational policy-making process according to the principle of subsidiarity could become a tool to foster the “imagined community” as much as the new “citizens’ initiative”. The relevant provisions seem inspired by a growing awareness of European elites, that the Union will hardly enter the imagination of the citizens without involving them into in some ways into its workings. To which degree such involvement is feasible and desirable is another question. Expectedly, it is far from definite answers. Whether the right answer lies in Swiss style modes of direct democracy by “radicalising Art. I, 47 (4)” (Papadopoulos 2005) or in promoting supranational parties is to be discussed. The TCE offers provisions for both although the operational details have still to be spelled out in a European law. In terms of norms and values the Charter of Fundamental Rights incorporated in the TCE as Part II is of utmost importance. In spite of the fact that also in the past the Union had to respect such rights and was therein controlled by the European Court of Justice, to spell out these rights in a special document elaborated by a Convention is in its own a value-driven achievement. It does indeed recall numbers of national constitutions that starting from the French Revolution had put a special emphasis on fundamental rights. It was, moreover, a special exercise for those member states representatives who did not have anything similar in their national constitutions. In particular Title I on human dignity pays tribute to the Ger-

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man “Grundgesetz” as it takes up exactly the same formula: “Human dignity is inviolable. It must be respected and protected” (Art. II-61). The Charter thus summarizes a variety of rights enshrined in national constitutional documents as well as in the European Convention of Human Rights, but also goes beyond them as in the case of some social rights or the rights of individuals in view of biotechnological engineering such as the prohibition of eugenic practices or of the reproductive cloning of human beings (Art. II-63). Those reading the TCE as a document “imagining the new community” may be counter-vailed by others supporting an intergovernmental reading. The latter might point to the fact that the “peoples” still appear in plural, thus ruling out at least for the present the formula of “We the people…”. As aforementioned, the document repeatedly refers to the member states in their role as “Masters of Treaty”12 and as principals of integration (see Art. I-1(1); cf. Pollack 1997, Moravcsik 1998, Kassim and Menon 2002). Article I-5 (1) underlines the need to “respect … national identities of the member states and … their essential State functions….” Moreover and in spite of some procedural changes, the power to revise the treaty still lies in the hands of member states (Art. IV-443 and 445). Last but not least the new Article I-60 regulating the “voluntary withdrawal from the Union” is an important case in point for an intergovernmental interpretation. The truth is perhaps to be found in a reading reckoning the dialectics between supranationalism and intergovernmentalism: Article I-5 (2) reiterates the principle of “sincere cooperation” between member states which “shall refrain from any measures which could jeopardise the attainment of the Union’s objectives”, whereas treaty revisions are the prerogative of the member states. Moreover, with the distinction between ordinary and simplified revision procedures (IV-443-444) come new provisions introducing the Convention (IV-443 (2)) and participatory rights for the EP as well as the national parliaments. Two further provisions enhance such reading: first, Article IV-443 (4) states that “if two years after the signature of the treaty amending this Treaty four fifth of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council”; second, the possibility to change the treaty in specific policies without IGC (Art. I-18) and, third, to change the decision making procedure from unanimity to Qualified Majority Voting by an unanimous decision of the Council13. 12 This definition was formulated by the German Bundesverfassungsgericht in its Maastricht Judgment 1994. 13 General provision: Art IV-444, social policy: Art. III-210, Environment: Art. III-234, Family Law: Art. III-269; CFSP: Art. I-40 and III-300.

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These provisions have of course to be tested in the future, provided the Treaty is eventually ratified. But taken together with the normative parts they reflect fundamental attitudes that will influence the future use of given opportunities and frame preferences affecting interpretations of the Treaty by national and EU institutions, in particular by the European Court of Justice.

4. The Union’s Competences: Expanding Tasks towards a State-like Agenda The question about the “nature of the beast” called European Union (Risse-Kappen 1996) is first and foremost a question about what the Union is allowed to do. In the last instance it is not a question about values and norms, nor even about the institutional set-up, but about competences. The litmus test for the power of a political centre is whether it has the competence to transfer competences, i.e. the so-called “Kompetenzkompetenz”. In this respect the TCE offers constitutional continuity not only in the aforementioned Article I-1 (1), but by reaffirming the principles of subsidiarity (Art. I-11 (3)) and proportionality (Art. I-11 (4). In order to foreclose potential spill over dynamics the TCE creates an “early warning system” which endows national parliaments with the right to “ensure the compliance with that principle” (Articles I-11 (3) and (4) and Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality, Art. 6). How this system will work in practice is to be seen in the future. The provisions spelled out in Article 7 of the Protocol according to which a minimum of one third of national parliaments is needed to call for a revision of the legislative draft might represent a serious hindrance to the use of this right. Until now and for various reasons the large majority of national parliaments have little experience with the complexity of the supranational decision-making process and even less so with inter-parliamentary coordination. As to the catalogue of competences proposed by the TCE the clear-cut enumeration of different kinds of competences is novel: there are “areas of exclusive competences” (Art. I-13 (1)), of “shared competences” (Art. I-14 (2)) and of “supporting, coordinating or complementary action” (Art. I-17) as well as those covered by the “coordination of economic and employment policies” (Art. I-15) and the “common foreign and security policy” (Art. I-16). If we add up all policies mentioned in these different categories it becomes obvious that almost no field of statal activities is left untouched by the Union. However, the TCE offers a better and more transparent classification of competences rather than creating new ones. This allows for interpretations of European integration in the vein of the state building thesis. In particular, recalling the history of the Union since 1951 and the

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spill-over effects occurred in the various phases of integration predictions, however cautious, about a persistent pull towards centralisation in a Westphalian style are not mere speculation. Yet, we have to bear in mind that these competences differ significantly in form and scope, in particular those based on coordination are rather weak in character and will hardly lead to anything worth the notion of centralized statehood. And there are other essential differences between the Union and the classical state: first and foremost, the TCE does not change the European budgetary spending either in terms of quantity or of quality and decisions on revisions of the relevant provisions remain bound to unanimity and the requirement of national ratification (Art. I-54 (3)). Statehood is intimately linked to taxation and the monopoly of legitimate violence. As to taxation the Union has not the right to directly tax the citizens, its “own resources” between 1 and 1, 27% of the EU’s GNP are extremely limited, while “harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxes” (Art. III-171) is subject to unanimity of the Council who decides after consultation of the European Parliament and the Economic and Social Committee. With regard to the monopoly of legitimate violence issues are more complex. It goes without saying that the Union does not dispose of such monopoly. Moreover in a Weberian sense the monopoly comprises the right to impose the state’s will within the boundaries of its territory as well as the chance to wage war against another state (which today is limited by international law to defence in the case of aggression).14 In terms of the European Union these are the policies concerning the “area of freedom, justice and security” and common foreign and security as well as defence. Policies of justice and home affairs belong to the category of “shared competences” (Art. I-14 (2, j), whereas Common Foreign and Security Policy (CFSP) is regulated in a separate article which states this competence in a comprehensive way (I-16 (1)) adding to it the principles of loyalty and solidarity (I-16 (2)). However, the provisions for justice and home affairs potentially offer much greater chances for further centralisation. As a matter of fact, administrative fusion may become a driving force in this policy field, while CFSP is still heavily constrained by persisting unanimity as a general rule. In Article III-257, para 3, “the Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judi14 However, this limitation of the competences of European institutions in European multi-levelgovernance bears similarity to federal systems where a clear monopoly of legitimate power can often not be discerned. The obligation of Member States to implement legal provisions of the EU can, in fact, be compared to the federal mode of power sharing.

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cial authorities and other competent authorities, as well as through the mutual recognition of judgements in criminal matters, and if necessary, through the approximation of criminal laws.” Article III-260 provides arrangements for an “evaluation of the implementation of the Union policies… in particular in order to facilitate the full application of the principle of mutual recognition.” Article III261 sets up a standing committee within the Council in order to ensure operational coordination, whereas according to Article III-263 “the Council shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States… as well as between those departments and the Commission”. From a fusion perspective these are provisions prone to create spill-overs. Other articles of this Chapter refer to the development of a common policy on asylum and immigration (Art. III-265 to 268), while in civil and criminal matters cooperation is strengthened and supported by Eurojust and Europol (Art. III-273 to 277). As in a variety of specific fields measures will be established by European laws and framework laws, thus involving all three European organs and departing from unanimity, gradual centralisation is likely. If implemented, Article III-274 is of particular interest as it envisages the establishment of a European Public Prosecutor’s Office. By way of a cautionary tale we may well conclude that in this field state-building will occur fostered by the phenomena of terrorism and organised crime. With regard to CFSP, Article I-16 states that the Union shall cover “all areas” and “all questions” pertinent to it including the progressive framing of a common defence policy. Moreover, “Member States shall actively and unreservedly support the Union’s common foreign and security policy in a spirit of loyalty and mutual solidarity…”. This is an example of rather bold rhetoric which is hardly matched by the more concrete measures spelled out in Part III of TCE where unanimity is the rule. Recent history in particular with regard to the intervention in Iraq has taught us about national idiosyncrasies when it comes to core aspects of sovereignty. However, the difference between external and internal security is striking and needs further investigation. One hypothesis might concern the strong bonds of many important states with NATO and hence with the USA. Contrary to popular beliefs, in the field of economic and employment policies coordination prevails over common policy (Art. I-15). Measures ensuring coordination are conceived in terms of “broad guidelines” (see also III-177 to 179) rather than by strict regulations. On the other hand, decisions resulting from mutual surveillance and negative judgements about the consistency of national behaviour with the guidelines (Art. III-179) are taken by qualified majority voting. However, there is a skewed relationship between economic and monetary policy the latter being a highly centralised competence of the European Central Bank.

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By way of conclusion of this chapter on competences it is important to add some remarks on the “flexibility clause” (Art. I-18). This clause states that the Council has powers to adopt appropriate measures for attaining objectives, for which the TCE has not provided the necessary powers. Such clause has existed also in the previous treaties (Art 235 and later 308 Treaty of the European Communities), but its scope has been extended in the TCE as it is applicable to all objectives of the Constitutional Treaty and to all of Part III. As the most important provisions for CFSP are to be found here, the flexibility clause has the potential to undermine the unanimity constraints in this policy field. Thus, if the lessons taught by the past of European integration hold true for the future as well, a “cultivated spill-over” of the Union into so far unclaimed territories might occur.

5. The Institutional Architecture: a Restated Equilibrium on a Higher Level With respect to the Union’s institutional set-up the Constitutional Treaty offers some important innovations in line with the past. It strengthens each body of the Union, which is in the logic of fusion theory. However in-built ambiguities of the architecture will certainly reinforce tensions, while solutions for the widely discussed problems of transparency and accountability fall short of expectations. By and large the TCE is an instance of institutional evolution. In Article I-46 the TCE states for the first time that the working of the Union is based on representative democracy and the dual legitimacy of its institutions derives from the citizens and the member states: The first “are directly represented …in the European Parliament”, the second “are represented in the European Council by their Heads of State or Government and in the Council of Ministers by their government, themselves democratically accountable either to their national Parliaments or to their citizens.” Consistent with this declaratory article the TCE reinforces both sides by incrementing their powers, thus maintaining and perhaps exacerbating the tension between intergovernmental and supranational features of the Union. The system of colliding forms of representation will thus persist in the future as well. However, the new rights of the European Parliament extending its legislative, budgetary, control and electoral functions (Art. I-20 (1)) buttress the theory of federalism as this institution generally associated with a federal order is ever more developing towards the second chamber of a bicameral system. The co-decision has been re-labelled as the “ordinary legislative procedure” (Art. I-34) and it will be applied to all European Laws and European Framework Laws (Art. I-33). Moreover this pro-

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cedure has been extended to an additional 47 cases and, most importantly, includes new central policy fields within Justice and Home Affairs. Together with the extension of the consent procedure to fundamental decision such as approving the “multi-annual financial framework” (Art. I-55 (2)) and to the “simplified revision procedure” (Art. IV-444) these powers of the EP reduce the areas in which it is not involved to 26%. In the Treaty of Nice the figure is 47%. Another significant innovation is the EP’s prerogative to elect and not just approve the President of the Commission by the majority of its component members (Art.I-20 (1)), while for the first the time it is also granted the right to initiate and prepare IGCs (Art. IV-443 (1)) thus ending its status as mere onlooker. This right does not, of course, change the power of the IGC to take the final decision on the treaty revision. But it is to be expected that the involvement of the EP at the preparatory stage will change the frame and hence the outcome of the debate as has been the case in the Convention. On the other hand, the TCE reinforces the European Council as decision-maker. First, the European Council is classified as an organ of the Union giving it formal status in the institutional architecture and, second, it will be led by a president whose term is a renewable two-and-a-half years (Art. I-22 (1)). This is a major institutional innovation in that it will end the six-months rotating presidency, thus enhancing continuity and professionalisation (Art. I-22 (2)). As the President, elected by the European Council with qualified majority, shall not hold a national office (Art. I-22 (3)), it is to be expected that he or she will eventually emerge as a truly supranational player. This new status may foster his or her capability to facilitate the formulation of a European interest which goes beyond the least common denominator of national interests. Although the president’s tasks are rather vaguely described and concerning CFSP might even create major conflicts due to the possible competition with the newly created Minister of Foreign Affairs, the mere fact that the Union will be represented inside and outside by such a figure could, over time, lead to some kind of a federal-style leadership. This development could become even more plausible if, as some interpreters of the TCE hold, a merging of the president of the Commission with the president of the European Council is at least not precluded by the Constitution. As a matter of fact, the rule of independence from any national office has not been extended to supranational offices (Fischer 2005: 155). Besides the new role of its president, the European Council’s powers are formalised in Art. I-21 (1) according to which it is supposed to “provide the Union with the necessary impetus for developments and shall define the general political directions and priorities thereof. It shall not exercise legislative functions”. In several respects this article is an understatement if we consider the history of this organ which had existed informally for more than thirty years. Moreover, as the

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European Council will be entitled to take decisions e.g. in CFSP, one might even question the reality of the provision that it shall not exercise legislative functions (I-40). Most importantly, due to the fact that the members of the IGC are identical with those of the European Council the latter has the final word on any Treaty revision before such document is to be ratified according to national procedures. Last but not least, the prerogative of replacing the unanimity clause by a qualified majority vote in the Council (Art. I-40 (7)) or of transforming a “special” into an “ordinary legislative procedure” (as e.g. in Art. III-210 (3)) bestows on the European Council an important constitutional function. This so-called passerelle has been heavily criticised in spite of the fact that the bridge can only be crossed unanimously. The potential dynamics of the clause has been counter-vailed by the provisions giving each national parliament a right to veto such a decision (IV-444 (3)): “Any initiative taken by the European Council (on the basis of the passerelle) shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months… the European decision … shall not be adopted.” Moreover, such decision presupposes the consent of the European Parliament. Some of the electoral powers of the European Council have existed before (as the right to propose the Commission President and to appoint the President of the European Central Bank), others concerning its own president as well as the Minister of Foreign Affairs have been added. Finally, the European Council will formally act as an instance of appeals in specified cases, where under a threat of a possible qualified majority decision a Member State may request that the draft be referred to the European Council. This interference by Heads of State in the workings of the Council mirrors the reality of the living constitution in the EU. With regard to the Council of Ministers the most astounding innovation in the TCE is the new conception of qualified majority voting which is based on two sources of legitimacy, i.e. the citizens for the population criterion and the members for the state criterion. The so-called double majority requested for passing the threshold asks for 55% of the members of the Council comprising at least fifteen of them and representing at least 65% of the population of the Union. A blocking minority must include a minimum of four Members (Art. I-25 (1)). This appears as a small revolution in the name of greater efficiency compared to the past. However this provision is diminished by two factors: first, in policy fields crucial to national sovereignty such as foreign and defence policy (Art. III-300 (1)), social and tax policy (Art. III-210 (3)), fundamental decisions on “own resources (Art I-54 (3)) and the multi-annual financial framework (Art. I-55) unanimity has been maintained. Moreover, in CFSP, social policy and in justice and home affairs further emergency brakes are introduced in the case fundamental aspects of a national system are

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jeopardised. Second, the spirit of the Luxemburg compromise restated in the protocol of Ioannina remains vital in the provision granting the representatives of approximately 25% of Union citizens a suspensive veto. It goes without saying, that the application of the double majority will not be easy to reach. The “third way” strategy of increasing efficiency and preserving national participation has been pursued also in the provisions relating to the Commission. The discussions in the Convention oscillated between desires of greater efficiency, thus promoting a smaller body, and the concept of a grand body with representative character (one member per state). The result is a triumph of the promoters of a smaller body and at the same time a delay in implementation as the reduction to two-thirds of the total member states will not occur before 2014. Here again, special powers are given to the European Council, which may change this procedure by unanimous vote. The position of the President is strengthened through the right to dismiss single commissioners (I-27 (3)), whereas the Parliament’s right of censure motion can only target the entire collegiate as was the case in the past (I-26 (8) and III-340). Last but not least, the Union Minister for Foreign Affairs is perhaps the most outstanding innovation of the TCE. However, looking at the provisions in detail will unveil a classic: After years of discussions about the need to give the Union a representative as the single voice of Europe in the world, thus increasing the Union’s efficiency in CFSP, is counter-vailed by a strong will of not reducing the dominant position of the member states. Being at the same time member of the Council and Vice-President of the Commission, this double-hatted Minister will be supported by the European External Action Service (Art. III-296 (3)) which should imply a pooling of national and supranational administrative resources. This is indeed another example supporting fusion theory.

6. And Now? The Conundrums of Constitutionalising Power The delay in the ratification of the Constitutional Treaty that could also be interpreted as the complete abandonment of this attempt at constitutionalising the EU (Wessels 2004: 27-28) clearly leads to the question if and how this document shall be dealt with in the future (Weidenfeld 2005c). Are the many elaborated and detailed descriptions and analyses of the development of this document (among them this book, but see also Jopp/Matl 2005a, Weidenfeld 2005a, Große/Hüttemann 2005) more than mere snap-shots of a debate cycle that has to be replaced by an analysis of the current crisis? Irrespectively of the short-time fate of the Constitutional Treaty, we think that

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the many proposals and comments delivered with regard to this document can enhance our understanding of European integration: ● They document political and academic thought on a historically remarkable project. Their lines of argument are part of greater narratives (cp. KohlerKoch/Conzelmann/Knodt 2004: 28-37) or, even, meta-narratives (Faber 2005: 265) of European integration. Analyses of the difficult way from Nice via Laeken and the Convention to the IGC 2005 that are the subject of this book can complement theories of integration by empirical material. On the other hand, they can also be the starting point of new political myths, in retrospective either deploring the lost opportunity of a “concept for the enlarged European Union without alternatives”15 or understanding current developments as the end of an obsolete understanding of European integration that gave leeway to a more realistic approach. ● Crucial provisions of the Constitutional Treaty and comments on them describe and characterize the working of the existing Treaties in political practice. In this vein, the tasks ascribed to the European Parliament (Art. I-20(1) or the Council of Ministers (Art. I-23) help to understand the institutional architecture of the EU (Wessels 2005c). ● Innovations, supplements, and changes brought forward by the Constitutional Treaty document weaknesses of the current working of EU institutions identified by the Founding Fathers and Mothers of the Constitutional Treaty. Considerations on the assets and drawbacks of specific proposed changes can play a role in upcoming debates on EU arrangements. Regardless of its final outcome, the Constitutional Treaty documents a common understanding of the future of Europe that has been developed by legitimate political representatives. The Fathers and Mothers of the Constitutional Treaty as well as many commentators hoped that by issuing this document the “legitimacy of European decisions would be strengthened”, the EU would get more possibilities for geopolitical acting, and “European values would get a clearer profile”. 16 There are several main thematic areas of political and academic thought on the Constitutional Treaty that go beyond its actual political life span of the document: ● The convention method as a model for the future (Göler/Marhold 2005: 470472). Apart from its political relevance the decision making process in the Convention has also found keen attention of the social sciences. Within this 15 „Alternativloses Ordnungskonzept für das erweiterte Europa“ (Jopp/Matl 2005b:38-40). 16 „Legitimitätsstärkung europäischer Entscheidungen (…), Chancenzuwachs europäischer Handlungsfähigkeit (…), Profilschärfung der europäischen Wertorientierung“ (Müller-Graff 2004: 46-50).

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volume, the contributions by König and Oberhuber bear witness of this interest. Those and other theory driven data collections (cp. König 2005, Tsebelis 2005, Hix/Crombez 2005) can be used both theoretically and politically in the future. ● The double nature of the European Union as Union of Citizens and Union of States (Läufer 2005:15; Liebert 2005: 397-400; Balwin/Wyplosz 2004: 96-97; Louis/Ronse 2005: XIX), respectively the “transnational polity with the janus face of supranationality and intergovernmentality”17. These characterisations lead to the search of further terms for the “still unidentified beast”.18 ● The completion and reforms of the institutional architecture (Emmanouilidis 2005a; Jopp/Mattl 2005b: 32-38; Wessels 2005b: 50-68) with regard to legitimacy (Liebert 2005: 383-410), effectivity (Weidenfeld 2005b: 20-21), and capacity to act (Müller-Graff 2005: 100-105) of the EU system . ● Impact of the legal personality of the EU and the primacy of EU law (Louis/ Rinse 2005: 82-85; 247-252). ● Openness and flexibility (Läufer 2005: 23, Emmanouilidis 2005b) with regard to differentiation (Weidenfeld 2005b:21) and “enhanced cooperation” (Deubner 2005). ● “Reorganisation of policies and activities”19 in core fields of state activities, such as the area of freedom, security and justice (Kainer 2005), CFSP (Regelsberger 2005, Algieri 2005) and ESDP (Diedrichs/Jopp 2005; Algieri/Bauer 2005). ● Allocation of competencies and instruments (Becker 2005, Fischer 2005). ● The Role of the Regions (Hrbek 2005). It is with the aim of acknowledging the progresses of thought on European integration triggered by the Constitutional Treaty that this book has been published at a time when the political future of the Constitution is not at all clear. However, even if the Constitution has failed for the time being, it seems a worthwhile enterprise to describe and analyse the efforts that were put into the making of a European Constitution. Moreover, important actors have time and again advocated a pick and choose strategy in particular with regard to TCE provisions relating to CFSP and Justice and Home Affairs. As the contribution of Anne Peters shows, the process of European constitutionalisation started with the Treaty of Rome and was acknowledged in this term 17 „janusköpfige Doppelnatur des transnationalen Gemeinwesens aus Supranationalität und Intergouvernementalität“ (Müller-Graf 2005: 96-97). 18 „das noch immer ‚unbekannte Wesen‘“ (Schneider 2005). 19 „Neuordnung von Politiken und Handlungsfeldern“ (Jopp/Matl 2005a: 259-383).

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as early as 1978 whereas the law-making activity of the European Court of Justice played a major role. However, the understanding of constitutionalisation changed during the history of European integration and, nowadays, it is not so much law making by the Court of Justice than the development of a constitutional basis of the EU that stands at the core of most legal studies. Peters analyses the specifica of European constitutionalisation within the context of more general concepts of constitutions and comes to the conclusion that the Constitutional Treaty, while part of a much longer process, still bears more constitutional features than previous documents. While this quality can be understood as symbolic or even fraudulent given the power of the Member States and still in many respects lacking legitimacy of European governance, Peters understands the utopian character of the Constitutional Treaty as a chance to enhance the legitimacy of the EU. The double nature of the EU that is, once again, preserved in the Constitutional Treaty poses the question about the relationship between a European Constitution and national Constitutions. This relationship is not only and maybe not even mainly coined by legal questions but has to be understood out of national political cultures and the role national constitutions have played therein. The impact of constitutional traditions on the making of a European Constitution was the focus of a two years research project that was the starting point of this book. Its results are summarized in the contribution of Bruno Scholl showing the impact of constitutional traditions in Austria, France, Germany, and the UK for the behaviour of national proponents in the European Convention. Thereby, constitutional traditions are understood in a broad sense transcending black-letter-law and including historical background and political culture. Two pathways of dealing with the constitutionalisation of the EU out of a national perspective can be discerned: Within the ‘uploading’ mechanism, domestic institutional arrangements are used as models for the European level – this has been mainly the way for Germany and France and, to a lesser, degree also for Austria while the UK used a ‘contrasting mechanism’ to frame European reform options as different from national arrangements with the aim to preserve the essentials of the domestic system. Jenny, Pollak, and Slominski come to a similar result with regard to the views of national Members of Parliaments and Members of the European Parliament on the Future of Europe. Different political systems, such as the role of the parliament versus the power of the executive have had crucial impact on the models proposed for the future of the EU, as well as for the assessment of such proposals by other Member States. While British legislators are strongly influenced by the concept of parliamentary sovereignty and, therefore, not willing to transfer further rights to the European level, Germany and, to a lesser degree, Austria have aspired

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at exporting their political model on the European level. French MPs and MEPs, on the other hand, especially opposed more parliamentary rights due to the traditionally strong position of the executive in their country. Still, Jenny, Pollak, and Slominski do not identify deep cleavages between the MPs and MEPs but rather issue specific positions. In spite of these different starting points and the conflicts resulting thereof, national positions have converged during the process of Constitutionalisation and, above all, within the Convention. Therefore, it seems worthwhile to look more closely at negotiations within the European Convention and to do so out of methodologically different perspectives. Within this volume the contributions of Florian Oberhuber and Thomas König analyse the internal dynamics of the Convention. Oberhuber offers a detailed empirical analysis of the Convention as a complex social and discursive process. He discerns between the hardware (institutional and communicative set-up), software (culture), and processing (mainstreaming). Distinctive features of the Convention’s set-up were the position of the members of the Convention as individuals, not as bearers of interests or power as well as the eminent influence the praesidium and its secretariat had on the Convention’s procedures. While, thus, the possibility of reasoned deliberation between individuals was opened up by the formal status of the members, this possibility was, at the same time, reduced by the influence of the praesidium. According to Oberhuber, it would be short-sighted to describe this influence merely as the exertion of power as the secretariat succeeded in (temporarily) overcoming differences and thereby creating a ‘discursive interculture’, thus, a software apt for reaching consensus. Furthermore, the processes of the Convention, like, above all, networking in informal groups, helped the mainstreaming of its discourse. König’s perspective is a more abstract one, analysing the Convention and the subsequent intergovernmental negotiations with the help of two level game analysis. In his understanding, European integration causes an inherent principalagent-problem in which delegates’concerns for national/organizational interest are subordinate to personal interests. When interests of those negotiating EU matters (i.e. governments) (seemingly) hurt national interests, ratification in national parliaments will be doubtful. With regard to the principal-agent-problem the Convention method bringing together actors of different political levels seems apt to decrease the risk of defection. The second question König is dealing with is the influence the Convention had on the process of constitutionalisation. He comes to the conclusion that the Convention and, above all, its presidency had considerable discretionary power in setting the agenda for further constitutionalisation but that, rather paradoxically, the more it used this power the more likely the Constitutio-

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nal Treaty was thereafter to miss the acceptance by the governments and the ratification in the Member States. Further developments of the constitutionalisation process support König’s hypothesis. Even before the ratification process with its negative outcomes in two Member States, the European governments met considerable difficulties in reading a consensus on the constitution. After the Italian presidency of the EU failed to guarantee successful negotiations, the Irish presidency decided to prioritise the IGC on the Constitutional Treaty in its programme and to do everything possible to come to a successful end of negotiations. Brigid Laffan’s contribution analyses in depth the efforts of the Irish presidency that, finally, reached this aim. The strategy of the Irish presidency consisted of intensive debates with all Member States in bilateral and multilateral meetings, and in finding compromises in as many as possible issues before the IGC so to have time to tackle the really controversial issues. For the IGC proper, the presidency, thus, prepared a “closed” document on issues for which a broad consensus was reached according to the presidency and an open document on issues for which further debate was necessary. After intense discussions, the final text was agreed upon. According to Laffan, this success was to a high degree due to successful political leadership supported by a qualified and experienced team. When it was decided in Laeken to convene a European Convention in order to develop suggestions for the future of a enlarged and deepened European Union, the question of constiutionalisation was addressed rather as a long-term project than as a result to be achieved in the near future. The Convention, however, did indeed go beyond its mandate by drafting a coherent document which governments accepted with some changes and after some delays. Although the changes were important in some respect (e.g. the Legislative Council was dropped), they did not alter the basic thrust of the TCE. On the other hand, the Convention was meant to enhance transparency of the EU as well as interest of the citizens for EU politics and thus to promote a European public sphere. After the failed ratification process it might be disputed in how far this aim has been reached. Out of hindsight, the main problem here seems to be that it has not been at all clear what the role of European citizens in the process of constitutionalisation and, in general, in EU decision making should be. The double nature of the Union as a polity of citizens and member states makes the assumption of real political influence of the sovereign, the demos, even more precarious than on the level of nation states. But what is a European public sphere (or what could it be) given these political conditions? If we measure a public sphere by the amount of media interest for European matters and the convergence of media discourses in different nation states, the

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process of European constitutionalisation has considerably contributed to a European public sphere as the contribution of Andreas Maurer shows. Maurer’s paper is based on a content analysis of ten newspapers in four Member States (Austria, France, Germany, UK) focusing on the coverage of the Fischer speech, the IGC in Nice, the European Council in Laeken, and the start of the Convention. Overall, he comes to the conclusion that the post-Nice debate was documented in and relevant for the media. More importantly still, Maurer identifies a Europeanized media system. While explicit cross-national references were lacking, the mediated Post-Nice debate was not split into isolated different national debates. The evidence on the timing of themes clearly suggests a convergence of issues. Is this, then, the European public sphere politicians and academics have been looking for during the last decade? And, if yes, why did the ratification process fail if the process of constitutionalisation has been made transparent to the citizens? An obvious answer to this would be that the citizens understood what was at stake and decided against it. However, not only those preferring an elite approach to European democracy doubt that, in fact, the French and Dutch electorate voted against the innovations the Constitutional Treaty brought about. But, as Monika Mokre’s paper analyses, there was a double message to the citizens delivered by the referenda. While, on the one hand, citizens should take part in a constitutional moment of the EU, they were asked, on the other hand, to accpet the Constitutional Treaty as an obvious progess compared to the Treaty of Nice. An evaluation of the differences between the two treaty versions is, however, a rather complex issue for a referendum and, besides, one that only experts can really understand. It is, thus, little surprising that citizens especially in France used this opportunity to give their judgement of the European integration process as a whole. It could be argued that the fact that the referendum was probably not decided on the question of the Constitution but on a series of different questions more or less related to European integration is less problematic than the general scepticism of European citizens to European integration. Moreover and paradoxically, many of the issues criticized by the citizens could be better solved on the base of the Constitution they renounced. As it is common for academic work that aims at political relevance, this book poses many more questions than it answers. Above all, there are many possible interpretations of recent developments in European integration that lead to different options for future acting. Does the EU need a more radical democratisation, more real rights for the citizens? Is the failure of the Constitutional Treaty due to the lack of possibilities for political participation that makes this decision of the citizens unpredictable and only loosely related to the matters at hand? Or has one,

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on the other hand, to accept that the European Union is too complex a polity to allow for real influence of the citizens? And what does one or the other argument mean for the future of the Constitutional Treaty? It is the aim of this book to document the relevance of the hitherto process of Constitutionalisation of the European polity and to warn against a complete abandonment of this way due to impediments which many constitutional processes have encountered also in the nation states. The conception of concrete solutions and further steps is, however, the task of politicians and not of academics.

7. References Algeri, F. (2005), ‚Von der Macht der Zeitumstände und der Fortführung eines integrationspolitischen Projekts: Die Gemeinsame Außen- und Sicherheitspolitik im Verfassungsvertrag’, in: W. Weidenfeld (Hg.), Die Europäische Verfassung in der Analyse, Gütersloh, 205-227. Algeri, F./ Bauer, T. (2005), ‚Eine Frage der Macht: Die Europäische Union auf dem Weg zum sicherheits- und verteidigungspolitischen Akteur mit globaler Reichweite’, in: W. Weidenfeld (Hg.), Die Europäische Verfassung in der Analyse, Gütersloh, 228-249. Baldwin, R./Wyplosz, C.(2004), The Economics of European Integration. Berkshire. Becker, P. (2005), ‚Die vertikale Kompetenzordnung im Verfassungsvertrag’, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 187-208. Deubner, C. (2005), ‚Verstärkte Zusammenarbeit in der verfassten Europäischen Union’, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 239-257. Diedrichs, U./ Jopp, M. (2005), ‚Die Sicherheits- und Verteidigungspolitik der EU nach dem Verfassungsvertrag: Innovationen, Experimente, Impulse’, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa – Analysen zur Konstitutionalisierung der EU, Baden-Baden, 343366. Emmanouilidis, J. A. (2005a), ‚Die institutionellen Reformen in der Verfassung – die neue Machtarchitektur der Europäischen Union’, in: W. Weidenfeld (Hg.), Die Europäische Verfassung in der Analyse, Gütersloh 2005, 70-104. Emmanouilidis, J. A. (2005b), ‚Der Weg zu einer neuen Integrationslogik – Elemente flexibler Integration in der Europäischen Verfassung’, in: W. Weidenfeld (Hg.), Die Europäische Verfassung in der Analyse, Gütersloh, 149-172. European Parliament (2006), Structure, subjects and context for an assessment of the debate on the European Union. Faber, A. (2005), Europäische Integration und politikwissenschaftliche Theoriebildung. Neofunktionalismus und Intergouvernementalismus in der Analyse, Wiesbaden. Fischer, T. (2005), ‚Kompetenzordnung und Handlungsinstrumente – Verhaltene Reformansätze in der Verfassung’, in: W. Weidenfeld (Hg.), Die Europäische Verfassung in der Analyse, Gütersloh, 105-135. Follesdal, A. (2005), ‘Towards a stable finalite with federal features? The balancing acts of the Constitutional Treaty for Europe’, Journal of European Public Policy, 2005, no. 3, 572-589.

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Göler, D./ Marhold, H. (2005), ‚Die Konventsmethode – Institutionelles Experiment oder Modell für die Zukunft?’, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 453-472. Griller, S. (2003), Comments on “The Institutional Debate. Contested Issues“ at the Conference “Constitutionalism and Democratic Representation in the European Union, Vienna, September 2003. Große Hüttmann, M. (2005), ‚Das Experiment einer europäischen Verfassung’, integration 3/05, 262-267. Haas, E. B. (1958), The Uniting of Europe, Stanford. Habermas, J. (1992), ‚Staatsbürgerschaft und nationale Identität’ in: J. Habermas, Faktizität und Geltung. Frankfurt/ M., 632-660. Hix, S./ Crombez, C. (2005), ‘Extracting Ideal Point Estimates from Actors’ Preferences in the EU Constitutional Negotiations’, European Union Politics 3/05, 353-376. Hrbek, R. (2005), ‚Die Regionen im Verfassungsvertrag – eine gestärkte Stellung im EU-System’, in: M. Jopp/ S. Matl (Hg), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 169-186. Jopp, M./Matl, S. (2005b), ‚Der Europäische Verfassungsvertrag als Höhepunkt im Prozess der Konstitutionalisierung der EU – eine Einführung’, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 15-41. Jopp, M./Matl, S. (Hg.) (2005a): Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden. Kainer, F. (2005), ‚Der Raum der Freiheit, der Sicherheit und des Rechts nach dem Verfassungsvertrag’, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 283-305. Kassim, H./ Menon A. (2002), The Principal-Agent Approach and The Study Of The European Union: A Provisional Assessment. The European Research Institute Working Paper Series. Kohler-Koch, B./Conzelmann, T./Knodt, M. (2004), Europäische Integration – Europäisches Regieren, Wiesbaden. König, T. (2005), ‘Measuring and Analysing Positions on European Constitution-building’, European Union Politics 3/05, 259-267. Läufer, T. (Hg.) (2005), Verfassung der Europäischen Union, Verfassungsvertrag vom 29. Oktober 2004, Protokolle und Erklärungen zum Vertragswerk, Bonn. Liebert, U. (2005), ‚Der Verfassungsvertrag: Ein Fortschritt für die demokratische Legitimität in der Europäischen Union?’ , in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 343-366. Louis, J. V./Ronse, T. (2005), L’ordre juridique de l’Union européenne. Dossiers de droit européen n˚13, Bâle. McKay, D. (2005), Policy Scope and Institutional Arrangements in a Decentralized Federation: EU Sustainability in Comparative Context. Paper Before the Joint Carnegie Mellon, Washington University Seminar on Political Economy, Gran Melia, Cancun, Mexico, 30th March –2nd April, 2005. http://www.andrew.cmu.edu/user/epenn/Cancunpaperfinal.doc, 2006-01-18. Moravcsik, A. (1998), The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, Ithaca, NY. and London. Müller-Graf, P.-C. (2005), Strukturmerkmale des neuen Verfassungsvertrages für Europa im Entwicklungsgang des Primärrechts, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden, 87-107. Offe, C. (2001), Gibt es eine europäische Gesellschaft? Kann es sie geben? In: Blätter für deutsche und internationale Politik, April 2001, 423-435.

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Papadopoulos, Y. (2005), ‘Implementing (and radicalizing) art. I-47.4 of the Constitution: is the addition of some (semi-)direct democracy to the nascent consociational European federation just Swiss folklore?’, Journal of European Public Policy , Vol. 12, No. 3, pp. 448-467. Pollack, M: (1997) ‘Delegation, agency and agenda setting in the European Community’, International Organization, 51/1: 99-134. Puntscher Riekmann, S. (2005), ‘Die Konstitutionalisierung der EU’, in : M. Jopp/ S. Matl (eds.), Der Vertrag über eine Verfasung für Europa. Analysen zur Konstitutionalisierung der EU. Baden-Baden. 133-152. Regelsberger, E. (2005), Mehr Sichtbarkeit, Kohärenz und Effizienz für die GASP – Chancen und Risiken im neuen Verfassungsvertrag, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden,. 323-341. Risse-Kappen, T. (1996), ‘Exploring the Nature of the Beast: International Relations Theory and Comparative Policy Analysis Meet the European Union’, Journal of Common Market Studies, Vol. 34, No. 1, March 1996, 53-80. Tsebelis, G. (2005), Assessing the Contributions of the DOSEI Project’, European Union Politics 3/ 05, 377-390. Wallace, H. (2000), ‘The Policy Process. A Moving Pendulum’, in: H. Wallace/W. Wallace (eds.), Policy-Making in the European Union, Oxford, 39- 64. Weidenfeld, Werner (Hg.) (2005a), Die Europäische Verfassung in der Analyse, Gütersloh. Weidenfeld, W. (2005b), Europa eine zuverlässige Ordnung geben: Weichenstellungen für den künftigen Integrationsprozess, in: W. Weidenfeld (Hg.), Die Europäische Verfassung in der Analyse, Gütersloh, 13-26. Weidenfeld, W. (2005c), ‚Europäische Einigung im historischen Überblick’, in: W. Weidenfeld./ W. Wessels (Hg.), Europa von A bis Z. Taschenbuch der Europäischen Integration, 9. Auflage, Baden-Baden,13-48. Wessels, W., ‘Keynote Article: The Constitutional Treaty - Three Readings from a Fusion Perspective’. Journal of Common Market Studies, Vol. 43, No. S1, September 2005, 11-36. Wessels, W. (2004), Die Europapolitik in der politikwissenschaftlichen Debatte, in: f Weidenfeld./ W. Wessels (Hg.), Europa von A bis Z. Taschenbuch der Europäischen Integration, 9. Auflage, Baden-Baden, 27-38. Wessels, W. (2005a), ‚Theoretischer Pluralismus und Integrationsdynamik: Herausforderungen für den „acquis académique“’, in: H.-J. Bieling/ M. Lerch (Hg.), Theorien der europäischen Integration, Stuttgart , 427-457. Wessels, W. (2005b), ‚Die institutionelle Architektur des Verfassungsvertrags: Ein Meilenstein in der Integrationskonstruktion’, in: M. Jopp/ S. Matl (Hg.), Der Vertrag über eine Verfassung für Europa. Analysen zur Konstitutionalisierung der EU, Baden-Baden 2005, 45-85. Wessels, Wolfgang (2005c), Das politische System der Europäischen Union. Die institutionelle Architektur des EU-Systems, Wiesbaden, im Erscheinen.

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Part I: The Making of a European Constitution: Processes and Methods

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The Constitutionalisation of the European Union – Without the Constitutional Treaty Anne Peters1

1. Introduction European press agencies heralded the adoption of the “Treaty Establishing a Constitution for Europe” of 29 October 20042 as the creation of the “first European Constitution” in the history of Europe.3 In contrast, both the European Court of Justice (ECJ)4 and probably the majority of EU-lawyers5 have long been arguing that a European Constitution has come into being quite some time before 1 2 3

4

5

Prof. Dr. iur., LL.M. (Harvard), Chair of Public International and Constitutional Law, University of Basel, Switzerland. O.J. 2004 C 310/1 (TCE). See the reports of 29 October 2004 of the German Press Agency (DPA), French Press Agency (AFP), Swiss Press Agency (SDA), and BBC. Alls reports available via http://www.lexisnexis.com/de/business/browse/, visited on 10 February 2005. Case 294/83, Parti Ecologiste ‘Les Verts’ v. European Parliament, ECR 1986, 1339, para. 23; Opinion 1/91, Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, ECR 1991, I-6079, paras 30-53; Opinion 2/94, Accession of the Community to the European Convention for the Protection of Human Rights, ECR 1996, I-1759, paras 34-35. See from the abundant scholarship only the monographs by Jörg Gerkrath, L’emergence d’un droit constitutionnel pour l’Europe, Brüssel 1997; Wolfram Hertel, Supranationalität als Verfassungsprinzip, Berlin 1999; Joseph Weiler, The Constitution of Europe: “Do the new clothes have an emperor?”, and other essays on European integration, Cambridge 1999; Christoph Dorau, Die Verfassungsfrage der Europäischen Union: Möglichkeiten und Grenzen der europäischen Verfassungsentwicklung nach Nizza, Baden-Baden 2001; Anne Peters, Elemente einer Theorie der Verfassung Europas, Berlin 2001; Thomas Schmitz, Integration in der supranationalen Union, Baden-Baden 2001; Peter Häberle, Europäische Verfassungslehre, Baden-Baden 2001/ 2002; Amaryllis Verhoeven, The EU in Search of a Democratic and Constitutional Theory, The Hague 2002; Thomas Giegerich, Europäische Verfassung und deutsche Verfassung im transnationalen Konstitutionalisierungsprozess: Wechselseitige Rezeption, konstitutionelle Entwicklung und föderale Verflechtung, Berlin etc. 2003; Armin von Bogdandy (ed.), Europäisches Verfassungsrecht: Theoretische und dogmatische Grundzüge, Heidelberg 2003; Antonio López Pina, Europa, un proyecto irrenunciable: La Constitución para Europa desde la teoría constitucional, Madrid 2004; Pedro Cruz Villalón, La Constitución inédita: Estudios ante la constitucionalización de Europa, Madrid 2004; Christian Philip, La constitution européenne, Paris 2004.

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2004. In that vein, this paper starts off with the idea that, although the Constitutional Treaty of 2004 certainly is a mile-stone in European integration, it did not create an original European Constitution. Instead, the European Constitution has emerged, evolved and matured in a process, which was as early as 1978 identified as the “constitutionalization of the Treaty of Rome”.6 Coined in US-American legal scholarship, the term “constitutionalisation” referred to the law-making activity of the ECJ, notably to the judicial creation of the legal principles of direct effect and supremacy of EC/EU-law.7 Meanwhile, the initial academic focus on the ECJ as a constitution-maker has given way to a broader concept of constitutionalisation. When speaking of the constitutionalisation of the Union, lawyers today mean the step-by-step transformation of the EC/EU into a political system which rests on a constitutional basis.8 In conformity with this usage, I employ the term “constitutionalisation” as a short-hand for the emergence of European constitutional law within the European legal order. The concept of constitutionalisation implies that a constitution can come into being in a process extended through time (see on this aspect infra Part 4). It also implies that a legal text can acquire (or eventually loose) constitutional properties in a positive feed-back process. A text can therefore be more (or less) constitution-like. It may be, in short, a constitution-in-the-making. On a more associative level, the term “constitutionalisation” has a positive appeal,9 which is owed to the positive connotations of a legitimate constitution as a good order. This may also have to do with the positive ring of historic constitutionalism, i.e. the political movement of the 17th/18th century in quest for a written constitution (of the Nation State). In this process of constitutionalisation, the constitutional features which are identified, described and highlighted by academics and practitioners alike are both a consequence and a cause of further constitutionalisation.10 The focus on the constitutional features of the legal texts is likely to steer the legal evolution, as realized by the responsible political actors, in a certain direction. The concrete implications of “European constitutionalisation” of course depend on what we understand by “constitution”. This will now be explained.

6 7

Gerhard Casper, “Remarks”, in: American Society of International Law (ed.), Proceedings of the 72d Annual Meeting, Washington DC. 1978, p. 169 at p. 173. Seminal Eric Stein, “Lawyers, Judges and the Making of a Transnational Constitution”, in: American Journal of International Law 75 (1981), pp. 1-27. See already Casper (supra note 6), at pp. 169-172; see also Anne-Marie Burley/Walter Mattli, “Europe before the Court: A Political Theory of Legal Integration”, International Organization 47 (1993), p. 41 at pp. 41-42 with fn. 3.

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2. What is a Constitution? In order to verify the working hypothesis that a process of European constitutionalisation has been taking place for some time already, we must first clarify the notion “constitution”. Our starting point is the insight of Ludwig Wittgenstein: “The meaning of a word is its use in the language”.11 In our current everyday and legal language the State constitution is surely the most important specimen of constitution (in a normative sense12). But also other entities, such as sub-units in federal States, counties, parishes and so on, are said to have constitutions. Notably the founding documents of International Organisations are often officially named “constitution”.13 So linguistic usage by no way prohibits any talk of a constitution of the EU. Nevertheless, critics point out that this broad and “unsophisticated” no8

Jean-Paul Jacqué, “Der Vertrag über eine Verfassung für Europa: Konstitutionalisierung oder Vertragsrevision?”‚ Europäische Grundrechtezeitschrift 31 (2004), p. 551 at p. 552. Similarly Francis Snyder, “The unfinished constitution of the European Union: principles, processes and culture”, in: Joseph H. H. Weiler/Marlene Wind (eds), European constitutionalism beyond the State, Cambridge 2003, p. 55 at pp. 62-63, defining “constitutionalizing processes” as “those social processes which might tend to confer a constitutional status on the basic legal framework of the European Union.” See for a definition of “constitutionalisation” with slightly different accentuation Christiaan Timmermans, “The Constitutionalization of the European Union”, Yearbook of European Law 21 (2002), p. 1 at p. 2: “This process is one by which the legal system of the organization acquires some fundamental characteristics and is going to respect a number of basic values and in doing so, is making that system at the same time more independent from the contracting parties who brought it into being.” See for a yet different definition Lucia Serena Rossi, “‘Constitutionnalisation’ de l’Union européenne et des droits fondamentaux” , Revue trimestrielle de droit européen 38 (2002), p. 27 at pp. 28, 51, considering constitutionalisation to be the process which will eventually lead to a constitution which is not yet present. See for a three-phase model of European constitutionalisation (“integration”, “Europeanisation” and “politisation”): Antje Wiener, “Die Verfassung Europas: Konturen eines europäischen Konstitutionalismus”, Integration 27 (2004), p. 176 at pp. 176-180. A related, but different notion of constitutionalisation is hotly debated with regard to the WTO. In that context, lawyers mostly mean the transformation of the WTO-dispute settlement mechanism into a more arbitration-like system when speaking of “constitutionalisation of the WTO”. See Francisco Orrego Vicuña, International dispute settlement in an evolving global society: constitutionalization, accessibility, privatization, Cambridge 2004. A third, entirely different concept of constitutionalisation has been presented by Gunnar Folke Schuppert/Christian Bumke, Die Konstitutionalisierung der Rechtsordnung, Baden-Baden 2000. The authors call constitutionalisation the more and more pervasive pre-determination or impregnation of the entire legal order by constitutional principles (“radiating effect” of the constitution). See generally (and critically) on the concept of “constitutionalisation”: Rainer Wahl, “Konstitutionalisierung – Leitbegriff oder Allerweltsbegriff?”, in: Carl-Eugen Eberle/Martin Ibler/Dieter Lorenz (eds), Der Wandel des Staates vor den Herausforderungen der Gegenwart: Festschrift für Winfried Brohm zum 70. Geburtstag, München 2002, p. 192 (on European constitutionalisation at pp. 194-198).

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tion of constitution is not what the controversy about a European Constitution is actually about. We must therefore have a closer look at the typical and generally acknowledged features of constitutions.

2.1 Traditional Formal Properties of a Constitution Constitutions, in particular State constitutions, are normally said to have typical formal characteristics. One is that they are codified in one document. (The English Constitution is the best-known exception). However, before the entry into force of the European Constitutional Treaty, a comprehensive constitutional document for the EU was lacking (and even the Constitutional Treaty falls short of it). The codification in one document is no mere formality. The constitutional document testifies the conscious systematisation of constitutional law. It contributes to normative stability. And finally, the enshrinement of constitution law in one single document creates legal certainty and legal clarity and is thereby an important guarantee of the rule of law. Nevertheless, the quest for a complete codification of the constitution appears somewhat anachronistic. The codificatory ideal was motivated by the desire to eclipse intermediary political forces competing with the State. One single core was intended to mould the uniform 9 Wahl (supra note 8), at p. 195. 10 Cf. Joseph H. H. Weiler, “Supranationalism Revisited – a Retrospective: The European Communities after 30 years”, in: Werner Maihofer (ed.), Noi so mura: Selected Working Papers of the European University Institute, Florence 1986, p. 341 at p. 382, n. 28. 11 “Die Bedeutung eines Wortes ist sein Gebrauch in der Sprache”, Ludwig Wittgenstein, “Philosophische Untersuchungen”, in: Werkausgabe [Complete Works] Vol. 1, Frankfurt a.M. 1984, p. 262 (No. 43), translation by the author. 12 “Constitution” has on the one hand a factual meaning (state, mood, act of constituting). On the other hand, it has a normative meaning (constitution as a fundamental order). The debate on the constitutionalisation of the Union relates first and foremost to the constitution in a normative sense. 13 See the Constitution of the United Nations Educational, Scientific and Cultural Organization of 16 November 1945, the Constitution of the World Health Organisation of 22 July 1946, the Constitution of the International Labour Organisation of 9 October 1946, the Constitution of the Food and Agricultural Organization of the United Nations of 16 October 1946, the Constitution of the International Telecommmunication Union of 22 December 1992. See on the constitutitonal quality of the UN-Charter notably Bardo Fassbender, UN Security Council Reform and the Right of Veto, The Hague 1998, at pp. 89-115. In 1991, the European Commission on Human Rights called the ECHR “un instrument constitutionnel de l’ordre public européen dans le domaine des droits de l’homme”. Loizidou v. Turkey, judgment of 4 March 1991, Revue universelle des droits de l’homme 3 (1991), p. 193 at p. 201, para. 22.

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State.14 Today, the fragmentation of State powers and the establishment of multilevel governance calls into question the idea of a total codification. But this should not hinder us to strive for greater legal clarity. In this perspective, the European Constitutional Treaty constitutes important progress. It does help to overcome the “constitutional chaos” which has characterized the Union so far.15 It was first and foremost this chaos, the scattered and intransparent state of European constitutional law which prevented a public perception of European basic norms as a European Constitution. The second traditional formal property of constitutional law is that it supersedes ordinary law. Although not all historic and present State constitutions have been and are supreme (such as the Constitution of the German Reich of 1871 or the English Constitution), supremacy is a very important constitutional characteristic. Only a supreme constitution can fulfill functions such as the containment of political power, normative stabilization and the judicial settlement of legal conflicts. European constitutionalists often argue that the primacy of Community law over the law of the Member States is a functional equivalent to the supremacy of a constitution. In this perspective, it is noteworthy that Art. 10 TCE sought to codify the so-far merely judge-made principle of the primacy of Union law over the law of the Member States. However, the mere fact of codification does not as such resolve the old controversy surrounding the principle of primacy. It is well known that most Member States (including 13 Members of the old Union of 15, except Belgium and Luxemburg) have not yet fully accepted that the primacy of European law flows from the autonomy of the Community legal order and that its scope is determined authoritatively by the ECJ. On the contrary, the Member States claim that it is up to the national constitution and to the national courts to decide to what extend European law supersedes domestic law, in particular in relation to the national constitutions.16 This “deep-seated, though normally latent, inconsistency between the Community legal system and those of the Member States”,17 in practice hardly poses any problems, the political agitation triggered by the German constitutional court’s “Maastricht”-decision left aside. In the absence of one single supreme arbiter, the pluralism of positions can not be resolved 14 Hermann Heller, Staatslehre, 3d ed. Leiden 1963 (original 1934) at p. 270; Georg Jellinek, Allgemeine Staatslehre, 3d ed. Berlin 1914, at p. 521. 15 Deirdre M. Curtin, “The Constitutional Structure of the Union: A Europe of Bits and Pieces”, Common Market Law Review 30 (1993), p. 17 at p. 67. 16 See in detail Peters 2001 (supra note 5), pp. 308 et seq. 17 Trevor C. Hartley, “The Community Legal Order: A British View”, in: Jean-Denis Mouton (ed.), Vers une nouvelle constitution pour l’Union Européenne? – la Conférence Intergouvernementale de 1996, Trier 1995, p. 57 at p. 60.

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by a top-down decision, but only by alignment of the currently diverging attitudes of the ECJ on the one side and the Member states’ courts on the other side. Be it as it may, a detailed analysis of the rationale of the European principle of primacy reveals that this is no constitution-like primacy. The primacy of European law covers all European rules, even the most petty and technical ones. It is intended to safeguard the uniform application of European law. This function is a typical federal function. It has nothing to do with the supremacy of constitutional law which is supposed to shield some fundamental principles against the ordinary lawmaker. A genuinely constitutional, not federalist, type of supremacy can only be found within the European legal order. Currently, even European primary law (treaty law) is full of provisions which have, as far as their substantive content is concerned, no place in a constitution. In a constitutional perspective, it is therefore important to separate the truly constitutional substance in the treaty-law from the rest and create an internal hierarchy of norms within European primary law.18 The abortive Constitutional Treaty makes only modest progress in this direction. Part I of the Constitutional Treaty includes the main provisions of a wholly constitutional nature. Its Part II contains the Charter of Fundamental Rights. Part III describes the internal policies. Amendments to Part III can be effected by means of (slightly) simplified revision procedures under Art. IV-444 and IV-445 TCE.19 Although in a formal perspective, Part III of the Constitutional Treaty might therefore be considered to lack a constitutional status, it does contain quite a few hidden provisions of fundamental, viz. constitutional substance.20 To sum up, the traditional formal properties of constitutional law are still largely absent on the European level. A single constitutional document is missing, 18 See on this question, e.g., Andreas von Arnauld, “Normenhierarchien innerhalb des primären Gemeinschaftsrechts: Gedanken im Prozess der Konstitutionalisierung Europas”, Europarecht 38 (2003), pp. 191-216. A different, but not constitutional, question is the hierarchy of secondary European law, which was established by the abortive Constitutional Treaty (Art. I-33 et seq. TCE). 19 Art. IV-444 TCE applies to those amendments of Part III that to not entail an increase to the Union’s powers. The European Council may decide the amendment unanimously, after consulting the EP and the Commission. Still, the most important political hurdle to amendment, the requirement of a parliamentary approval by all Member States has not been torn down by Art. IV-444 TCE, because each national parliament still has a right of veto (Art. IV-444(3) TCE). The simplification effect of the special amendment procedure therefore seems marginal. Art. IV-445 applies to revisions of Title III of Part III (internal Union policies and action). See for a good analysis Bruno de Witte, “La procédure de révision: continuité dans le mode de changement”, in: Christine Kaddous (ed.), Les principes fondamentaux de la Constitution européenne, Geneva 2006 (forthcoming), at paras 12-13. 20 De Witte, “Procédure de révision” (supra note 19), at para. 9.

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although the dead-born Constitutional Treaty had come closer to this ideal than the previous Treaties. And the establishment of a constitution-like supremacy will require further refinement of the so-far embryonic hierarchy within the body of primary EU law.21

2.2 Traditional Substantial Properties of a Constitution The substantial components of a “constitution” are even more contested than the formal ones. Our initial look at linguistic usage had revealed that the term “constitution” (in a normative sense) is applied to fundamental norms which legalise institutionalised political power. This is the broadest notion of constitution. Given the fact that the Union is a highly organised and institutionalised polity, a European Constitution in that broad sense exists without any doubt. The narrower, functional notion of constitution relates to rules and principles fulfilling typical constitutional functions. The traditional constitutional functions are to limit political power, to organize a political entity, to offer political and moral guidelines, to justify governance, to constitute a political system, and finally, to contribute to integration. It is quite obvious that European fundamental norms fulfill similar functions as the Sate constitutions of the Member States, in part parallel, in part complementary to the latter22 Parts of EU-law constitute the European Union as a legal community,23 they contain the power of the institutions, and they organise the Union as a polity. For sure, not all of the typical constitutional functions have been performed equally well by the existing body of European law. In particular, Union law hardly managed to furnish moral and political values and to contribute to the integration of the citizens (not only of institutions and policies). But these functions are anyway highly problematic, even in the pure State context.24 The constitutionalist reconstruction of European law at least has the merit of unveiling such functional deficiencies. Not surprisingly, the Constitutional Treaty specifically attempted to improve those “softer” and more 21 See in detail Peters 2001 (supra note 5), at pp. 339-357. 22 In detail Peters 2001 (supra note 5), at pp. 76-92; also Ingolf Pernice, “Europäisches und nationales Verfassungsrecht”, in: Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 60 (2001), p. 148 at pp. 153, 158-160, 163-64. Critically Henning Köppen, Verfassungsfunktionen – Vertragsfunktionen, Berlin 2002: “strukturelle Divergenz zwischen bundesstaatlichen Verfassungen und EU-Gründungsverträgen aus funktioneller Sicht” (at p. 312-13). 23 Walter Hallstein, “Die EWG – Eine Rechtsgemeinschaft” (1962), in: id., Europäische Reden, ed. by Thomas Oppermann, Stuttgart, 1979, p. 341 at p. 341. See also ECJ, Opinion 1/91, EEC (supra note 4), para. 21.

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cultural and social functions. For example, the “Union’s values” are prominently enshrined in Article I-2 TCE.25 Overall, it seems quite unproblematic to speak of a European Constitution in functional terms. The actual controversy surrounds the third and narrowest notion, which I would like to call a legitimist notion of a constitution. This is the notion which underlies 18th/19th century constitutionalism. It has been enunciated most famously in Art. 16 of the French Declaration of the Rights of Man and Citizens of 26 August 1789: “Toute société dans laquelle la garantie des droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a point de constitution.”26 Human rights and separation of powers are the necessary contents of a constitution. Nowadays, further material elements have been added, most importantly democracy and a minimum of social security guarantees. In this nomenclature, any competing form of legal order, e.g. a monarchy, is not a bad constitution, but its pretension to be a constitution is completely rejected. Constitution is, in this perspective, a valueladen concept. I submit that this narrow, legitimist notion of constitution is in theoretical and legal terms flawed. First, it is not universal. The original US-Constitution did not contain a bill of rights and was adopted by a State convention. Historic constitutions, notably in Germany, were not democratic. Today, we speak of a Chinese, Byelorussian or Sudanese Constitution. All these constitutions may be in the contemporary European view illegitimate, but they are in the legal discourse treated as constitutions, and not as non-constitutions.27 Of course the substance of the European Constitution should not massively fall short of the constitutional standards of the EU Member States. But quality assurance can not be achieved with means of a terminological reduction of the con24 See on the integration of society by the State and the State constitution Peter Saladin, Wozu noch Staaten?, Bern 1995, at pp. 194-220; Stefan Korioth and Armin von Bogdandy, “Europäische und nationale Identität: Integration durch Verfassungsrecht?”, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 62 (2003), pp. 117 et seq. and 156 et seq. 25 Art. I-2 TCE: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. Under Art. I-3(1) TCE, “[t]he Union’s aim is to promote peace, its values and the well-being of its peoples.” 26 “A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.” English translation in http://www.hrcr.org/docs/frenchdec.html, visited on 24 February 2005. 27 See in this sense also Rolf Grawert, “Wie soll Europa organisiert werden? – Zur konstitutionellen ‘Zukunft Europas’ nach dem Vertrag von Nizza”, Europarecht 38 (2003), p. 971 at pp. 976-77.

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cept of constitution. On the contrary, such a reduction appears to divert our focus from quality. Problems are more readily assessable when the notion “constitution” is separated from the type of legitimacy it possesses (or not). Only then we can answer the question whether a constitution is a legitimate one not only with “yes” or “no”, but in a more nuanced way.28 In terms of constitutional theory, it is therefore most fruitful to rely on a functional concept of constitution. This view allows us to ascribe a constitution to the EU, while highlighting that this constitution suffers from some legitimacy deficiencies, notably as regards the aspect of democracy.

3. The European Constitution without a State A specific debate within the broad legal discourse on the constitutionalisation of the European Union focussed on the question whether a non-state entity can have a constitution.29 Prominent (mostly German-speaking) scholars argued that only States can possess a constitution “in the full sense” of the term30 and that the transfer of the concept of constitution to the European level would debase and demean the idea of constitution.31 In response to this line of reasoning, it should be pointed out that the concept of constitution is neither terminologically nor logically coupled to the State. In the course of the 18th and 19th century, in which the modern ideas of constitution and constitutionalism were developed, the novel idea of a constitution was not everywhere linked to the State. In contrast to the German statist idea of the constitution, the British idea of constitution primarily referred to “government”, the American idea of constitution to “society”, and the French idea to the “na28 Tobias Herbst, Legitimation durch Verfassunggebung: Ein Prinzipienmodell der Legitimität staatlicher und supranationaler Hoheitsgewalt, Baden-Baden 2002, at p. 188. 29 See in detail on this question Anne Peters, “Grundlage europäischer Konstitutionalisierung: Die Entkopplung von Verfassung und Staat”, in: Ulrike Liebert/Josef Falke/Andreas Maurer (eds), Postnational Constitutionalisation in the New Europe, Baden-Baden 2006, p. 35. 30 Dieter Grimm, “Braucht Europa eine Verfassung?”, Juristen-Zeitung 50 (1995), p. 581 at p. 590. 31 See, e.g., Jörg Paul Müller, Die demokratische Verfassung: Zwischen Verständigung und Revolte, Zürich 2002, at p. 93: “In der europäischen und nordamerikanischen Geschichte, aber seit dem 20. Jahrhundert auch weltweit, hat sich die Verfassung in Praxis und Theorie als eines der wichtigsten Instrumente für die Gestaltung staatlicher Souveränität erwiesen. Verfassung und Souveränität (als Ausdruck höchster menschlicher Zuständigkeit) sind eine so enge Bindung eingegangen, die nicht einfach abgestreift werden kann und soll: Wir brauchen auch in Zukunft einen intakten Begriff der Verfassung, um den Unwägbarkeiten menschlichen Machtstrebens und der Notwendigkeit wohlgeordneter Freiheit unter Menschen mit einem geschichtlich bewährten und gedanklich reichen Instrument begegnen zu können.”

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tion”.32 Only in German political theory, the idea of constitution was reserved for the State. In the German debate on the legal qualification of the founding act of the Norddeutscher Bund in 1867, which created a State and its constitution simultaneously, two opposing views were formulated and still resonate in present-day constitutional theory. The statist view was: “The State and governmental power is always primary, the constitutional limitation of its exercise is notionally always secondary.”33 This interpretation of the relationship between the State and the constitution was expressed in a classical image: The State is the body and the constitution merely the (varying) gown.34 In opposition to this etatist position, the legalist view was that the State is created and constituted as a political entity only by the constitution.35 With a view to the European constitutional debate, it is remarkable that the empirical-historical priority of the State, as asserted by the statist school, has tacitly been transformed into a logical-notional priority of the State. The consequence of this move is that the State now figures as the logicalnotional pre-condition of a constitution: “Constitution can not be understood without the State. The latter is its object and the pre-condition of the former.”36 According to this view, the EU can not, in the absence of statehood, have a constitution: “Without state, no constitution, and without a nation, no state.”37 The statist thesis correctly emphasises that historical constitutions relate to 32 Ulrich K. Preuß, “Der Begriff der Verfassung und ihre Beziehung zur Politik”, in: id. (ed.), Zum Begriff der Verfassung: Die Ordnung des Politischen, Frankfurt a. M. 1994, p. 7 at pp. 11-25; Peters 2001 (supra note 5), at pp. 98-103. 33 “[D]er Staat und die Staatsgewalt sind immer das Primäre, die constitutionelle Beschränkung bei der Ausübung kann begrifflich erst das Sekundäre sein.” Philipp Zorn, Das Staatsrecht des Deutschen Reiches, Vol. 1, Berlin 1880, at p. 26; translation by the author. 34 Julius Hatschek, Deutsches und preussisches Staatsrecht, Vol. 1, Berlin 1922, at p. 8. 35 Rudolf Smend, “Verfassung und Verfassungsrecht”, in: id., Staatsrechtliche Abhandlungen, Berlin 1994 (1928), p. 119 at p. 193. 36 “Verfassung [ist] nicht zu verstehen ohne Staat. Dieser ist ihr Gegenstand und ihre Voraussetzung.” Josef Isensee, “Staat und Verfassung”, in: id./Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. I, Heidelberg 1987, p. 591 at para. 1; translation by the author. See also Jean-François Aubert, “La Constitution, son contenu, son usage”, Zeitschrift für Schweizerisches Recht 110/II (1991), p. 9 at p. 28, para. 24: “la constitution se rapporte nécessairement à l’Etat ... il n’y a pas, au sens où nous prenons ce terme, de constitution sans État”; id. at p. 30, para. 27: “l’État est supérieur à la constitution, c’est lui qui la crée, il la précède et il arrive qu’il lui survive”. 37 “Wo kein Staat, da keine Verfassung, und wo kein Staatsvolk, da kein Staat”. Paul Kirchhof, “Kompetenzaufteilung zwischen den Mitgliedstaaten und der EU”, in: Vertretung der Europäischen Kommission in der Bundesrepublik Deutschland (ed.), Europäische Gespräche 2/ 94, Europäisches Forum: Die künftige Verfassungsordnung der Europäischen Union, Bonn 1994, p. 57 at p. 59 (translation by the author).

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historically primary, at least roughly organised entities. Because a constitution is not created ex nihilo and can not function in a vacuum, it depends on a factual basis. But those extra-legal pre-conditions of a constitution are not monolithical. To summarise them under the simplistic heading “State” fails to realize their complexity. In any case, to infer from a doubtful historical priority a logical priority of the State and thereby to declare the State to be a logical and notional pre-condition of a constitution is in terms of logic not compelling. What counts even more is that the actual characteristics of State government (including constitutional law as its legal component) are worn off by globalisation, understood as the appearance of global, de-territorialized problems and the emergence of global networks in the fields of economy, politics, law, and science. Not enough that the State’s classical attributes, such as State sovereignty, the monopoly on the legitimate use of physical power, the presumption of all-encompassing State competencies, have long been put into perspective by the acknowledgment of pre-statal principles such as human rights, popular sovereignty, and subsidiarity. Additionally, globalisation has increased global interdependence and puts the State and State constitutions under strain: Global problems compel States to co-operate with each other under the auspices of International Organizations, and by means of bilateral and multilateral treaties. Previously typically governmental functions, such as guaranteeing human security, freedom and equality, are in part transferred on “higher” levels. Moreover, non-state actors (acting within States or even in a transboundary fashion) are increasingly entrusted with the exercise of traditional State functions, even with core tasks such as military and police activity.38 The result of these multiple phenomena is that “governance” (understood as the overall process of regulating and ordering issues of public interest)39 is exercised beyond the States’ constitutional confines. Especially within the EU, governmental functions and powers are divided between the European institutions and the Member States. The classic attributes of the State, notably State sovereignty, will not be regained on a higher level. No other political entity on the international level is in sight, which could, as previously ideally the State, guarantee peace and justice 38 In US-occupied Iraq of 2003/04, employees of federal contractors and sub-contractors (Blackwater USA, Kroll Inc., Custer Battles, the Titan corporation and others) worked as mercenaries, police, guards, prison officers, and interrogators. 39 James N. Rosenau, “Governance, Order, and Change in World politics”, in: id./Ernst-Otto Czempiel (eds), Governance Without Government, Cambridge 1992, p. 1 at p. 7: “Governance”, as opposed to “government” does not stem from some overarching governmental authority. See also Commission on Global Governance, Our Global Neighbourhood: The Report of the Commission on Global Governance, Oxford 1995.

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by means of one centralised legal system and one centre of power. “The globalised world dissolves into partial regulatory networks”.40 Seen in this perspective, globalisation is a process of decreasing uniformity and wholeness. This means that State constitutions can no longer regulate the totality of governance in a comprehensive way. The previous functions of State constitutions are no longer bundled in one political entity, but are dispersed in different political institutions. Thereby, the State constitutions’ original claim to form a complete basic order is defeated. Overall, State constitutions are no longer “total constitutions”. In consequence, we should ask for compensatory constitutionalisation on the European and even on the international plane. Only the various levels of governance, national, European, and international, taken together, can provide full constitutional protection.41 Constitutional lawyers agree that the concept of constitution should neither be petrified nor on the other hand distorted. I submit that it is possible to “europeanise” the idea of constitution without perverting it.42 For the reasons just explained, it is not only not impossible, but even desirable to conceptualise constitutional law beyond the nation or the State. Inversely, a European Constitution in no way implies European statehood.

4. The Constitutionalisation of European Law up to the Adoption of the Constitutional Treaty of 2004 4.1 Constitutional Evolution, not Revolution Traditionally, it is asserted that constitutions, at least the codified ones, are created by a pouvoir constituant in a revolutionary act, a kind of constitutional big bang. In contrast, the European Constitution evolved in a process through time.43 This 40 “[D]ie globalisierte Welt zerläuft sich in je partiellen Regelungs- und Netzwerken ...” ErnstWolfgang-Böckenförde, “Die Zukunft politischer Autonomie: Demokratie und Staatlichkeit im Zeichen von Globalisierung, Europäisierung und Individualisierung”, in: id., Staat, Nation, Europa, Frankfurt a.M. 1999, p. 103 at p. 118; translation by the author. 41 Thomas Cottier/Maya Hertig, “The Prospects of 21st Century Constitutionalism”, Max Planck UNYB 7 (2003), pp. 261-328. 42 See in this sense also Martin Morlok, “Grundfragen einer Verfassung auf europäischer Ebene”, in: Peter Häberle/Martin Morlok/Wassilios Skouris (eds), Staat und Verfassung in Europa, Baden-Baden 2000, p.73 at pp. 86-87. 43 See on the evolutionary character of the “process of constitutional change in the European Union”, Martin Westlake: “The European Union’s ‘blind watchmakers’: the process of constitutional change”, in: id. (ed.), The European Union beyond Amsterdam, London etc. 1998, pp. 16-33.

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phenomenon of constitutional evolution is, however, not alien to national constitutional law. Constitutional theorists have long pointed out that in reality, State constitutions (even written ones) are constantly evolving. It has therefore been suggested, with regard to national constitutions, to gather the aspects of formal constitution-making, formal constitutional amendment and progressive development by the judiciary and other actors under an overarching concept of “constitutional evolution”.44 That idea of constitutional evolution is a highly suitable explanation for the legal events on the European level. They may be characterized as “creeping constitutionalisation” in contrast to “constitutional engineering”.45 In terms of political theory, it is an evolutionary, not a revolutionary occurrence: Constitution by evolution. It is difficult to pinpoint a precise moment in which the Union was transformed from a non-constitutional entity into a constitutionalised polity. However, given the density of constitutional features within the body of European law as it stands now, that issue seems less important. The concept of constitutionalisation implies by necessity that this process is a continuing one. The existence of a European Constitution does not rule out that this constitution may be further developed. On the premise that European constitutional law existed before the adoption of the Constitutional Treaty of 2004, that Treaty could in theory have been created in normative discontinuity to the existing law. But the option of “revolutionary”, original, disruptive mode of constitutionmaking was not chosen by the relevant actors. Instead, the Constitutional Treaty came into being by means of legal evolution in normative continuity to the existing law. The Constitutional Treaty is formally an amendment of the EC- and EUTreaties (cf. also Article IV-438 TCE on “succession and legal continuity”). The revision procedure of Article 48 TEU has basically governed this amendment process.46 So although the Constitutional Treaty does not – legally speaking – constitute a revolutionary break with the preceding European Constitution, it still is in political terms a mile-stone – even without ratification. 4.2 Multiple Factors of Constitutionalisation As just pointed out, the European Constitution was not “given” in a specific constitutional moment by a single authority. There was no single event which created 44 Brun-Otto Bryde, Verfassungsentwicklung, Baden-Baden 1982, at p. 17 and passim. 45 Heidrun Abromeit/Tanja Hitzel-Cassagnes, “Constitutional Change and Contractual Revision: Principles and Procedures”, European Law Journal 5 (1999), p. 23 at p. 26. 46 The sole novelty was the preceding Convention. See infra Part 4.4.

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a European Constitution, but only an accumulation of steps of diverse legal character. Constitutionally relevant innovations were in part reactions to acute crises, in part the consequence of gradual changes in power constellation of the Union. Often, de facto arrangements were formalised only ex post. The founding treaties were the pre-condition to this process, because they were, consciously or not, construed so as to accommodate a constitutional dimension.47 The official report of the French delegation negotiating the European Coal and Steel Community in 1951 reads: “Les débats qui se sont poursuivis n’ont pas eu le caractère traditionnel d’une négociation, mais bien d’une construction commune qui avait pour objet, non d’éliminer des divergences, mais de résoudre la multitude de problèmes que soulevait l’œuvre entreprise. Bien souvent, au cours de l’histoire, des conférences entre États se sont efforcées de confronter et de rapprocher des intérêts nationaux. Celle-ci a rompu délibérément avec cette tradition. Pour la première fois, les gouvernements participants ... ont pris une vue commune de leur intérêt commun, et leurs représentants ont recherché ensemble les moyens d’atteindre le but qu’ils avaient reconnu valable pour tous”.48 Notably the formal amendments to the original treaties contributed to their constitutionalisation. The ECJ acknowledged this in its opinion on the Union’s accession to the ECHR, where it stated that those modifications of the Community system which have a “constitutional dimension” require a formal amendment of the Treaties.49 Until the Constitutional Treaty of 2004, the constitutionally most relevant amendments were contained in the Single European Act (SEA) of 1986 and in the Treaty of Maastricht of 1992. The SEA significantly strengthened the Commission and the European Parliament, extended the scope of the Community’s competencies, and invented the Common Market. The Treaty of Maastricht founded the Political Union and introduced the citizenship of the Union and the legislative procedure of parliamentary co-decision. With the Treaty of Amsterdam of 1997, the constitutional values were substantially strengthened.50 In contrast, the institutional reform largely failed in Amsterdam.51 The mixed outcomes in these two fields explain why the constitutional assessments of the amendments of Amsterdam were diverse. While some authors, looking at the codification of basic values, celebrated the reforms as a “novel 47 Gerkrath (supra note 5), at p. 162. 48 Rapport de la délégation française sur le Traité instituant la CECA, République Française, Ministère des Affaires étrangères, Octobre 1951, pp. 11-12 (quoted in Gerkrath (supra note 5), at p. 159; emphasis by the author). 49 Opinon 2/94, ECHR (supra note 4), para. 35.

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qualitative phase of constitutionalisation”,52 others spoke, vis-à-vis the institutional stand-still, of a “minimum revision of the Constitutional Charter”.53 The Nice Treaty of 2001 was in constitutional terms not very significant. The revisions slightly extended the scope of majoritarian decision-making in the Council, strengthened the Commission President, upgraded the Court of First Instance, and modified the enhanced cooperation. However, the Treaty of Nice only to a small extent realised the reform objectives which were to make the Union’s institutions more effective and more democratic, to improve judicial control and to make the Union fit for enlargement.54 Finally, the latest Treaty revision attempted by the Constitutional Treaty of 2004 was – in terms of institutional reform – no constitutional great leap forwards. However, this revision is, and be it merely on the lexical level by use of the term “constitution”, a “symbolically crucial step”55 in the process of constitutionalisation. The constitutional features of that Treaty will be analysed in detail in Part 5. A second very important type of constitutionalising acts are court decisions. The ones most often mentioned in this context are the ECJ’s judgments Van Gend 50 The free and democratic basic order was fortified by the formulation of basic values in Art. 6 (1) and (2) TEU and by upgrading those values as a condition for accession (Art. 49 TEU) and the possibility of sanctioning instances of disregard (Art. 7 TEU), and finally by explicitly extending the jurisdiction of the ECJ to the protection of basic rights (Art. 46 e) TEU). Also, the polishing up of social rights (TEU Preamble cl. 4 and integration of the European Social Charter into the Community legal order), new powers to take measures to combat discrimination (Art. 13 TEU), the main-streaming clause on gender equality (Art. 3 TEC), citiziens’ rights on administrative hearing, access to documents, and protection of personal data (Art. 21(3); 255; 286 TEC) belong in this context. 51 The few constitutionally relevant institutional and structural improvements were the expansion of the co-decision procedure (Art. 251 TEC), the vote of approval of the European Parliament for the nomination of the President and the other members of the Commission, and the need for accord of the nominee for president (Art. 214(2) TEC). 52 “[N]ouvelle phase qualitative dans la constitutionnalisation”, Hélène Gaudin, “Amsterdam: l’échec de la hierarchie des normes?”, Revue trimestrielle de droit européen 35 (1999), p. 1 at p. 7; translation by the author. 53 Jean-Marc Favret, “Le traité d’Amsterdam: Une révision à minima de la ‘Charte Constitutionnelle’ de l’Union Européenne”, Cahiers de droit européen 33 (1997), p. 555 at p. 555; translation by the author. 54 See Armin Hatje, “Die institutionelle Reform der Europäischen Union – der Vertrag von Nizza auf dem Prüfstand”, Europarecht 36 (2001), pp. 143-184, esp. at pp. 179-181. 55 Juliane Kokott/Alexandra Rüth, “The European Convention and its Draft Treaty Establishing a Constitution for Europe: Appropriate answers to the Laeken Questions?”, Common Market Law Review 40 (2003), p. 1315 at p. 1320. The authors characterise the adoption of the Constitutional Treaty as being “not an exercise of constitutionalization, but of constitutional rewriting and formalization”.

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& Loos (1963)56 on direct effect and Costa v. ENEL (1964)57on the primacy of Community law. The Court’s case-law on European fundamental rights seems equally important. And finally, the Court has at various occasions explicitly qualified the European Treaties as a constitution. That characterisation had the probably intended effect of consolidating and even extending the Court’s own powers of judicial control. In Les Verts, the constitutionalist argument justified a new, unwritten option of controlling acts of the European Parliament. 58 In the EEC-opinion, the projected scheme of judicial control within the EEC was at issue. In the eyes of the ECJ, the intended EEC-Court would have undermined the autonomy of the Community’s legal order – and of course its own role as the sole authoritative interpreter of that legal order.59 And finally, the ECJ’s ECHR-opinion was driven by the consideration that an eventual accession of the Union to the ECHR would probably compel the ECJ to adopt the case-law of the ECR and would raise the question of hierarchy between the two courts. Therefore, the ECJ considered this issue to have a “constitutional dimension”.60 Be it as it may, the invocation of the constitutional quality of a legal text in order to expand judicial review is wellknown in the history of constitutionalism (Marbury v. Madison61). In other contexts, this strategy has not called into question the normative authority of the constitution. A host of other constitutionalising factors can be mentioned. Among them are, e.g., the first direct elections to the European Parliament, or constitutionally significant autonomous modifications to the Treaty law by European institutions. A final remarkable type of constitutionalising acts are various arrangements or declarations, such as the famous Luxemburg Accords of 1966,62 the Joint Declaration of the European Parliament, the Council and the Commission against Racism and Xenophobia of 17 June 1986,63 the Inter-institutional Declaration on Democracy, Transparency, and Subsidiarity of 29 October 199364 or, most importantly, the Charter of Fundamental Rights of 7 December 2000.65 These and sim56 57 58 59 60 61 62

Case 26/62, Van Gend & Loos v. Nederlandse Administratitie der Belastingen, ECR 1963, 1. Case 6/64, Costa v. ENEL, ECR 1964, 1251. Case 294/83, ‘Les Verts’ (supra note 4), para. 23. Opinion 1/91, EEC (supra note 4), paras 30-53. Opinion 2/94, ECHR (supra note 4), paras 34-35. U.S. Supreme Court, 5 U.S. 137 (1803). See Final Communiqué of the extraordinary session of the Council (January 1966), in: Bulletin of the European Economic Community, March 1966, No. 3, pp. 5-11 at p. 9. 63 O.J. 1986 C 158/1. 64 O.J. 1993 C 329/133. 65 O.J. 2000, C 364/1.

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ilar texts are primarily political documents which have however indirect legal effects, because they serve as a guide-line for the interpretation of “hard” (constitutional) law and prepare the adoption of “hard” legal acts. They thereby function as constitutional soft law or even as “constitutional conventions” in the British sense.66

4.3 Multiple Actors of Constitutionalisation But who is the pouvoir constituant in that multi-dimensional process of constitutionalisation? Empirically, a number of actors can be discerned.67 There are first of all the Member States governments, which dominate the Treaty revision procedure and which agree on informal arrangements. We have the national parliaments which ratify the Founding Treaties and Treaty amendments. There are the European bodies and institutions which participate in the formal Treaty revision procedure and which may also effect autonomous Treaty modifications. Finally, the European citizens elect the members of the European Parliament and the Member States’ governments, represented in the European Council. The citizens also occasionally express their views in referendums on European issues. These empirical findings support the idea of a “pouvoir constituant mixte”68 or even of multiple pouvoirs constituants. The concept of constitutional evolution (as opposed to punctual constitution-making) abandons the neat distinction between the pouvoir constituant (understood as the pre-constitutional power creating the constitution) and the pouvoir constitué (the legalised powers, notably the institutions which act within the constitutional system any which may, inter alia, effect constitutional change).69 That classic distinction cannot be upheld when speaking of a process of constitutionalisation of the Union. In that process, all actors just mentioned, notably the Member States, are in a way both pouvoir constituant and pouvoirs 66 See for the constitutional conventions in British constitutional law Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability, Oxford 1984. 67 Cf. Francis Synder, “General Course on Constitutional Law of the European Union”, Collected Courses of the Academy of European Law VI-1 (1995), p. 41 at pp. 99-100 on the carriers of “constitutionalizing processes”. 68 “Il s’agirait maintenant de mettre en place les conditions d’expression du ‘pouvoir constituant communautaire’ qui sera sans doute doublement mixte, mi-national, mi-communautaire et migouvernemental, mi-parlementaire”. Vlad Constantinesco, “L’Union européenne: par le droit ou vers le politique? (ad augusta per angusta?)”, in: Gérard Duprat (ed.), L’Union européenne, droit, politique, démocratie, Paris 1996, p. 175 at p. 186.

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constitués.70 This conflation has been criticised as an anomaly and as a threat to the rule of law, notably in those quarters of (German) legal doctrine, which insist on keeping the pouvoir constituant outside the constitutional order, because it is (ostensibly) an extra-legal, purely “political”, unfettered and potentially dangerous element.71 However, both the distinction and its premise is not shared in other civilized countries, where constitutional scholars have no problem in conceiving both the creation and the amendment of constitutions as two related phenomena,72 which can in real life often hardly be distinguished.73 In consequence, the creating and amending powers must not be construed as categorically distinct, but may be considered as mere manifestations of a multi-faceted power of constitutional evolution.74 A normative question is whether this multi-faceted power of constitutional evolution satisfies the principle of popular sovereignty. For the first time in the history of European constitutionalisation, Article I-1 of the Constitutional Treaty of 29 October 2004 asserts that “this Constitution” reflects “the will of the citizens and the States of Europe”. It is noteworthy that this introductory provision refers to the “citizens”, and no longer to the “peoples of Europe” as the Preamble to the

69 See for this distinction Abbé Sieyès, Qu’est-ce que le Tiers Etat, Paris 1789: “[L]a constitution n’est pas l’ouvrage du pouvoir constitué, mais du pouvoir constituant” http://www.chd.univrennes1.fr/Chercheurs/LeYoncourtT/SieyesTiersEtat.htm, Chap. 5, at p. 18, visited on 21 February 2005. But note that the “pouvoir constitué” in the sense of Sieyès is not the constitutional amending power, but the legislator. Sieyès does not distinguish betwen constitution-making and constitutional amendment, but between constitution-making and law-making. Cf. in this sense also Elisabeth Zoller, Droit constitutionnel, Paris 1998, at p. 59: “La séparation du pouvoir constituant et des pouvoirs constitués est la condition première d’une distinction entre loi constitutionnelle et loi ordinaire.” 70 Marcel Kaufmann, Europäische Integration und Demokratieprinzip, Baden-Baden 1997, at pp. 349 and 532-33; Gerkrath (supra note 5), at p. 261. 71 In the tradition of Carl Schmitt, Verfassungslehre, München 1928, at pp. 77 and 98; Dietrich Murswiek, Die verfassungsgebende Gewalt nach dem Grundgesetz für die Bundesrepublik Deutschland, Berlin 1978, at pp. 163 and 186. 72 See in US-American scholarship notably Bruce Ackerman, We The People, Vol. 1: Foundations, Cambridge (Mass.) 1991. Detailed references in Peters 2001 (supra note 5), at pp. 383-386. 73 A series of amendments may modify the constitution in substance so throroughly that it has nothing in common with the original one. Is this then a new constitution or the old one, merely amended? A look at constitutional practice shows that neither substance nor procedures allow for a neat distinction. The decisive criterion seems to be a purely voluntary one: The will to break (and not to continue) with the “old” constitution and to orchestrate a new beginning. See in detail Peters 2001 (supra note 5), at pp. 280-383. 74 Udo Steiner, Verfassunggebung und verfassunggebende Gewalt des Volkes, Berlin 1966, at pp. 220-231.

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EC-Treaty did.75 This verbal attribution of the new legal text to the citizens is important, even if it does not reflect the reality. State constitutions, as well, have in reality not been “made” by the people, but by the respective elites. Nevertheless we should have a look at the actual role and powers of the European citizens in the process of constitutional evolution. The options for the citizens to express their views on European integration, on European institutional setup, and on European policies are quite limited. Citizens’ voices in the process of constitutional evolution have so far been too feeble to satisfy the ideal of popular sovereignty. However, the Convention method as designed in 2000 constitutes an important progress towards an open process of deliberation in which citizens’ voices are heard (see infra part 6).

5. The Constitutional Treaty of 2004 Overcomes the Outdated Dichotomy Between Contract and Constitution In the European debate, it has become fashionable to contrast the concept of constitution with the concept of treaty or contract.76 It was frequently asserted that European law was treaty law and could therefore not be a constitution. That argument drew on a dichotomy which had been constructed around the turn of the 19th/ 20 century (and was criticised already then).77 In the dichotomic view, a contract creates a bundle of subjective rights and contractual relations, but no independent legal order. The contract is subordinate to the will of the contracting parties, which may, as the “masters of the treaty” modify or abrogate it at any time. The contract is the typical instrument of regulation in the private (societal, economic) or international sphere. In contrast, a constitution literally constitutes an objective order, builds an institution, and unfolds its own life independent of the will of its 75 Cf. also Art. 189 TEC: “peoples of the States brought together in the Community”. 76 See the 2nd report of the institutional committee of the European Parliament (Herman-report) of 9 February 1994, Doc. A 3-0064/94, Part II, “Pourquoi une Constitution au lieu d’un traité?”, repr. in Revue Universelle des Droits de l’Homme 7 (1995), pp. 457 et seq.; Bruno de Witte, “International Agreement or European Constitution?”, in: Jan A. Winter (ed.), Reforming the Treaty on European Union: The legal debate, The Hague etc. 1996, p. 3; Abromeit/Hitzel-Cassagnes (supra note 45), p. 23; Köppen (supra note 22); Dieter Grimm, “Treaty or constitution? The legal basis of the European Union after Maastricht”, in: Erik Oddvar Eriksen/John Erik Fossum/ Agustín José Meníndez (eds), Developing a constitution for Europe, London, New York 2004, pp. 69 et seq. 77 See Georg Jellinek, Die Lehre von den Staatenverbindungen, Wien 1882, at pp. 257-58 on the question whether a federal state could emerge from a contract. Against the dichotomy between contract and legislation/constitution Hans Kelsen, Allgemeine Staatslehre, Berlin 1925, at p. 195.

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creators. It is the typical instrument of regulation of (national) public life. Transferring these two categories to the European Union, it was argued that the founding and amending treaties are international treaties in the strict sense, because they are created by the Member States. A genuine European Constitution would have to come into being by a constituent act of a pouvoir constituant, which so far did not happen. Any transformation of a treaty into a constitution requires – so the argument runs – a substitution of the “basis of legitimacy”.78 This argument is misleading, because it relies on a very narrow notion of “constitution” which feeds the mode of creation of the constitution into the concept itself,79 because it erroneously implies that currently only the Member States are relevant law-makers, and finally because it relies on a false dichotomy. The fallacy of that dichotomy has long been demonstrated by various strands of legal scholarship relying on quite different premises and forwarding a host of different arguments. The doctrine of the Gesamtakt (“Comprehensive Act”) on the creation of the Northern German Federation of 1867,80 the theory of the federal state by Carl Schmitt,81 and public international law studies on the founding acts of International Organisations82 and on traités-lois with constitutional sub-

78 See notably Grimm (supra note 30), at p. 586. 79 See supra Part 2. The mode of creation of a constitution may contribute to its legitimacy, but is in my view no definitional element of the concept itself. 80 Johannes Emil Kuntze, “Der Gesammtakt, ein neuer Rechtsbegriff”, in: Festgabe der Leipziger Juristenfakultät für Dr. jur. Otto Müller, Leipzig 1892, p. 27 at pp. 27 et seq.; Karl Binding, Die Gründung des Norddeutschen Bundes, Leipzig 1889, at p. 70; Heinrich Triepel, Völkerrecht und Landesrecht, Leipzig 1899, pp. 50 and 55-56. 81 Schmitt (supra note 71), at pp. 62-63, 368 and 372-73. 82 See the ICJ on the Constitution of the World Health Organisation: “From a formal standpoint, the constituent instruments of international organizations are multilateral treaties, ... Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional”, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, p. 66 et seq., para. 19. See in scholarship notably Riccardo Monaco: “Sous ce profil, l’acte institutif d’une Organisation déterminée est bien un traité international, fondé, en tant que tel, sur la volonté des contractants et donc soumis, au moment de sa formation, à leur volonté, mais il est par ailleurs destiné à devenir la constitution, c’est-à-dire l’acte de fondation de l’Organisation, auquel celle-ci se rattache tout au long de son existence. On pourrait dire, par conséquent, que l’acte institutif revêt la forme du pacte, mais possède la substance de la constitution: né sur la base d’une convention, il dépasse, avec le temps, son origine formelle, jusqu’à devenir une constitution de durée indéterminée dont le développement déborde le cadre à l’intérieur duquel elle avait été initialement conçue” (Riccardo Monaco, “Le caractère constitutionnel des actes institutifs d’organisations internationales”, in: Mélanges offerts à Charles Rousseau, Paris 1974, p. 153 at p.154, emphasis added).

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stance, notably human rights instruments83 – all these approaches have in common that they refuse to consider contract and constitution as mutually exclusive categories. The black-letter law of the EU has now hopefully definitely overcome the exaggerated opposition of the ideal-typical transactional, consensual, freely abrogable, and heteronomous contract and the fetishised “eternal”, autonomous, majority-governed constitution. The constitutional features which have been gradually acquired by the European documents have never erased their character as international treaties. This means that parts of European law were already before the adoption of the Constitutional Treaty both contract and constitution.84 The dualism has often – also by the ECJ itself – been simplified to the formula: “treaty in form, but constitutional substance”. 85 But a closer look reveals that constitutional features are present both on the so-called formal level and on the substantial level and notably pertain to the legal texts’ functions. In the nondichotomic perspective endorsed here, the constitutional reading of the legal texts has never attempted to introduce a change of paradigm, but seeks to offer an additional explanation for a better understanding of the relevant documents. The Constitutional Treaty of 29 October 2004 renews the hybrid state of the law86 and – most importantly – for the first time makes it explicit in the official 83 Robert Y. Jennings/Arthur Watts, Oppenheim’s International Law, Vol. 1: Peace, 9th ed. Harlow 1992, § 583; Alfred Verdross/Bruno Simma, Universelles Völkerrecht, 3d ed. Berlin 1984, p. 339; Georg Dahm/Jost Delbrück/Rüdiger Wolfrum, Völkerrecht, Vol. I/3, Berlin 2002, pp. 52021. See in the case-law the Inter-American Court of Human Rights, Advisory Opinion OC-16/99 of 1 October 1999, sep. op. Trindade Cançade para. 31, http://www.corteidh.or.cr/seriaing/ A_16_ING.html, visited on 24 February 2005. 84 See already Jean-Paul Jacqué, “Cour général de droit communautaire”, Collected Courses of the Academy of European Law I-1 (1991), p. 237 at p. 258; Jospeh H. H. Weiler/Ulrich Haltern, “The Autonomy of the Community Legal Order – Through the Looking Glass”, Harvard International Law Journal 37 (1996), p. 411 at p. 417; Gerkrath (supra note 5), p. 111; Jean-Claude Piris, “Does the European Union have a Constitution? Does it need one?”, European Law Review 24 (1999), p. 557 at p. 577 (“Treaty Charter”); Denys Simon, “Les fondements de l’autonomie du droit communautaire”, in: Sociéte française pour le droit international (ed.), Colloque de Bordeaux: Droit international et droit communautaire, perspectives actuelles, Paris 2000, p. 207 at p. 228 ; Peters 2001 (supra note 5), pp. 220-242 with further references; Giegerich (supra note 5), at pp. 719 and 1428. 85 As early as 1991 the ECJ asserted that the EC-Treaty represented, although it had been concluded in the form of an international agreement, the constitutional charter of a legal commmunity. ECJ, opinion 1/91, EEC (supra note 4), para. 21. 86 See in this sense, e.g., Christian Wichard, “Der Vertrag über eine Verfassung für Europa: Konstitutionalisierung oder Vertragsrevision?”‚ Europäische Grundrechte-Zeitschrift 31 (2004), p. 556 at p. 556.

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terminology of the “Treaty Establishing a Constitution for Europe”. On the contract-side, we note that the new document comes in the form of an inter-State treaty under public international law. It is based on a unanimous agreement of contracting parties. Its ratification and future amendments are subject to procedures which are normally applied to treaties. The main text is accompanied by a bunch of protocols and declarations, which is typical for a public international law treaty. In substance, contractual features of the Union’s institutional design under the new legal regime are the principle of conferral (Art. I-11 TCE); the mode of accession of new States which requires ratification by all Member States (Art. I58 TCE), and finally the explicit exit-option in Art. I-60 TCE.87 On the other hand, the new text has constitutional qualities. The document, as preceding treaties, fulfils typical functions of a constitution, such as the organisation of the polity, the containment of political power, and the embodiment of basic values. But in comparison to the preceding treaties, it achieves a higher degree of consolidation and clarification of the law. Furthermore, the Constitutional Treaty contains typical constitutional clauses, such as rules on the powers of the institutions, programmatic provisions on the objectives of the Union, and justifying principles such as fundamental rights, democracy, and transparency.88 In substance, the Constitutional Treaty has been called a “Nice bis”.89 It does not realise the long outstanding uniform voting procedure for the elections to the European Parliament. It does not provide for direct elections of the Commission President. It does not establish majority-voting as the sole decision-making mode. It does not allow for its own amendment without unanimous approval of all Member States. The introduction of these and similar elements was requested by constitutional maximalists. They were however not (yet) feasible. On the positive side, we note that the Treaty does introduce a number of institutional reforms. It formalises the Charter of Fundamental Rights, it expands ma87 See on the new provision Raymon Friel, “Providing a Constitutional Framework for Withdrawal from the EU: Art. 59 of the Draft European Constitution”, International and Comparative Law Quarterly 53 (2004), pp. 407-428. In contrast, the TEU does not enshrine a right to withdraw, but states: “This Treaty is concluded for an unlimited period” (Art. 51 TEU). It was hotly disputed whether this provision and the Treaty as a whole alllowed for a legal right to withdraw or not. Because “might” is not “right”, it is an entirely different issue that the States have the (more or less virtual) factual option to withdraw unilaterally or to dissolve the Union consensually. 88 If the term “constitution” is understood in a “neutral” sense, the strengthening of these elements improves the quality of the constitution, but does not form part of the qualification of the text as a constitution (see supra Part 2). 89 Joseph H. H. Weiler, “On the Power of the Word: Europe’s Constitutional Iconoraphy”, in: Deirdre Curtin/Alfred E. Kellermann/Steven Blockmans (eds), The EU Constitution: The Best Way Forward?, The Hague 2005, p. 3 at p. 6.

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jority voting in the Council, modifies the scope of decision-making modes, it introduces a new hierarchy of norms on the level of secondary Union law, it reforms the budget provisions, and it confers legal personality to the EU. Finally, the new provisions imply substantial new transfers of sovereignty to the European level (notably in home and justice affairs). Taken together, these features do not only fully justify the official denomination of the new document as a Constitutional Treaty, but likewise allow for its legal qualification as a European (contractual) Constitution. Due to the ratification crisis, the Constitutional Treaty will not enter into force on 1 November 2006. If within two years after signature (that is in October 2006) – four fifths of the Member States have ratified it, but one or more Member States encounter difficulties, the Declaration on the ratification of the Treaty establishing a Constitution for Europe90 foresees that the matter will be referred to the European Council. This provision has been interpreted as is a timid attempt to hold the door open for an entry into force of the Constitutional Treaty without unanimous ratification.91 This mode of entering into force would move the Constitutional Treaty on our sliding scale from contract to constitution even more towards the constitutionside, and away from the treaty-side. However, in the current political climate, it seems unlikely that any Member State is prepared to be bound by a treaty to which it has not consented. The consequence of some Member States’ definite refusal to ratify would rather be that those States must stay outside. This means that some scheme of a Europe of two speeds would have to be devised. The initial prospects were that eleven out of 25 Member States would hold a referendum on the European Constitutional Treaty.92 The first of those parallel national referendums took place in Spain in February 2005.93 However, the French negative popular vote of 25 May 2006 abruptly ended the ratification process. No further referendums were held. Anyway, the popular votes only confer a purely ‘genetic’ legitimacy, which is, as a matter of principle, weak. The formal act of (popular) approval relates only to the status quo. This isolated act cannot justify a constitution (for all times to come), especially if we take into account that it undergoes a constant process of constitutional evolution. If the constitution’s contents do not prove good, or if circumstances change, the past

90 Declaration No. 30, O.J. 2004 C 310 at p. 464. 91 Jacqué (supra note 8), at p. 552. 92 In Belgium, the Czech Republic, Denmark, France, Ireland, Luxembourg, the Netherlands, Poland, Portugal, Spain, and the United Kingdom. 93 Referendum of 20 February 2005; voter turnout: 42,32%; yes: 76,73%; no: 17,24%; blank votes: 6,03%. Source: http://www.constitucioneuropea.es/index.jsp, visited on 22 February 2005.

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single act of approval is no longer relevant.94 The most important factor of legitimacy of a constitution is not its mode of creation, but its performance and continuing popular support. Both can be verified only ex post. “Social legitimacy” in the sense of acceptance and diffuse support, and output-legitimacy, that is the actual performance of the constitution and fulfilment of constitutional functions, do not (directly) depend on the genesis of the constitution. Therefore the parallel referendums would not have contributed much to the legitimacy of the European Constitutional Treaty.95

6. The Constitutionalisation of the Treaty Revision Procedure The revision procedure is traditionally considered to be the litmus test for the legal qualification of a regime. Why? Because in the dichotomic view (treaty versus constitution; see supra Part 5), a constitution is characterized by the “autonomy” from its creators.96 In this perspective, it is conclusive that the power to amend a constitution lies not with the founders (the pouvoir constituant), but is a prerogative of the pouvoir constitué. I have tried to show that the distinction between pouvoir constituant and pouvoir constitué is not convincing (supra Part 4.3.). Because the pouvoir constituant and the pouvoir constitué can be regarded as two faces of a bundle of constitutionalising powers, it is no anomaly that the Member States of the Union are both the most important co-creators of the European constitutional order and the dominating actors within the formal revision procedure. I submit that the revision procedure under Art. 48 TEU has a mixed contractual-constitutional structure.97 On the one hand, we discern contractual elements. Facially, revision conferences do not resemble the way in which constitutional amendments are realized: They take place regularly, they always produce results, 94 Even assuming that an act of popular approval is apt to justify a constitution, this does not hold for future generations, who have not consented. Thomas Paine, “The Rights of Man” (original 1792), in: M. D. Conway (ed.), The Writings of Thomas Paine, Vol. II, London, 1996, at p. 278: “Every age and generation must be as free to act for itself in all cases as the age and generation which preceded it. ... Man has no property in man; neither has any generation a property in the generations which are to follow. ... It is the living, not the dead that are to be accommodated”. 95 See in detail Anne Peters, “Referendums on the Constitutional Treaty 2004: A citizens’ voice?”, in: Curtin et. at (supra note 89), pp. 39-57. 96 See in detail on the elusive notion of autonomy Peters 2001 (supra note 5), at pp. 242-295. 97 See in detail Peters 2001 (supra note 5), at pp. 434-442. See for a different analysis Bruno de Witte, “Rules of Change in International Law: How Special is the European Community?” Netherlands Yearbook of International Law 25 (1994), p. 299 at p. 317 (emphasising the diplomatic, intergovernmental, more public-international law like character of the revision procedure).

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and those results mostly reflect package deals. Another feature which makes the European revision procedure kin to the amendments of ordinary public international treaties is the dominance of the executive branch. This gives the entire proceeding a “diplomatic” flair. Another typical contractual feature seems to be the preponderance of the Member States (vis-à-vis the European institutions). However, in a federal constitutional system, the amending power never lies in the hands of the unitary institutions alone. Instead, we have a mixed amending power: “Dans un système fédéral, ... le pouvoir d’amendement n’est pas l’apanage des Etats fédérés, même agissant à l’unanimité; la collaboration, sous une forme ou une autre, des organes fédéraux est toujours prévue”.98 This mixed amending power is even considered to be a crucial element of federalism. Only where both the centre and the federal subunits are involved in eventual amendments of the constitution, which may seek, last but not least, to accommodate tensions between the centre and the periphery, a system can be called, according to Carl J. Friedrich, a “truly federal” one.99 Further constitutional elements of the revision procedure are the participation of the Union institutions and of the legislatives. In a constitutionalist perspective, the role of the European citizens in the treaty revision procedure is of particular interest. I have already discussed to what extent the citizens function as parts of the multiple pouvoir constituant (supra Part 4.3.) and have pointed out that the citizens’ impact has been modest. For sure, the Member States governments are elected directly by the people or by the national parliaments. Also, the national parliaments, which represent the citizens of their Member States, must ratify all amending treaties. And through the national elections, the citizens have an important affirmative power to act directly into European political reality. A proof of this capacity were the Spanish parliamentary elections of 14 March 2004 which led to a change of government which was probably decisive for ending the deadlock of the intergovernmental negotiations on the European Constitutional Treaty in 2004.100 Another channel for citizens’ participation in the Treaty revision procedure is the European Parliament. In the traditional treaty terms, the European 98 Michel Waelbroeck, “Peut-on parler d’un droit constitutionnel européen?” in: Travaux et conférences de la Faculté de Droit de l’Université Libre de Bruxelles 1964 II, p. 75 at pp. 78-79 (emphasis added). 99 Carl J. Friedrich, “Federal Constitutional Theory and Emergent Proposals”, in: Arthur W. Macmahon (ed.), Federalism: Mature and Emergent, Garden City (N.Y.) 1955, p. 510 at p. 514. 100 W.T. Eijsbouts, “The European Way: History, Form and Substance”, European Constitutional Law Review 1 (2005), p. 5 at p. 7. However, some observers point out that even the Spanish government which was voted out of office would have ultimately given up the national quests with regard to majority voting in Council which had blocked the negotiations.

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Parliament is said to represent the “peoples of the States brought together in the Community” (Art. 190 TEC). Art. I-20(2) TCE more appropriately calls this body the representation of “the Union’s citizens”. The European Parliament must under Art. 48 TEU (only) be consulted before convening the revision conference.101 However, in a continuing struggle, the Parliament managed to increase – slowly but steadily – its influence and role in the revision procedure. A milestone in the process of constitutionalisation of the rules of revision is the introduction of the convention method.102 It was first used for the elaboration of the Charter on Fundamental Rights in 1999/2000. The body entrusted with the drafting of the Charter called itself “Convention”. That name, which has strong constitutional connotations, was later also used for the “Constitutional Convention” of 2002/03. Both conventions were installed without any formal legal basis. But the mere soft-law character of the first Constitutional Convention did not prevent it from becoming the decisive forum for constitution-making in the current phase of constitutionalisation. It was the Convention which pointed the way and which designed the substance of the Constitutional Treaty. The Member States’ governments had initially propagated the idea of a “fire-wall” between the Convention and the Intergovernmental Conference in which the Treaty revision was formally going to take place. The Convention was initially conceived as a mere discussion forum which might eventually produce a number of non-binding suggestions from which the Governments would then pick and choose. However, the Convention Draft103 turned out to be a document of utmost political importance. Changes introduced at the Intergovernmental Conference of October 2004 were marginal. The convention method is a comparatively transparent and open procedure,104 in which the European citizens are heard and can actively participate. In the course of the first Constitutional Convention, those Member States which had initially not sent high-ranking politicians as their deputies, substituted them for del101 But note that the European Council in Thessaloniki of 19/20 June 2003 conceded that “[t]he European Parliament will be closely associated and involved in the work of the Conference.” Precidency Conclusions, para. 6, http://ue.eu.int/ueDocs/cms_Data/docs/pressdata/en/ec/ 76279.pdf, visited on 23 February 2005. 102 See in detail Andreas Maurer, “The Convention Method”, in this volume; Peter Norman, The Accidental Constitution: The Story of the European Convention, Bruxelles 2003. 103 Doc. CONV 850/03, Draft Treaty establishing a Constitution for Europe adopted by consensus by the European Convention on 13 June and 10 July 2003, submitted to the President of the European Council in Rome on 18 July 2003. 104 See Anne Peters, “Europäische Öffentlichkeit im europäischen Verfassungsprozess”, Europarecht 39 (2004), pp. 375-392.

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egates of ministerial rank. The Convention was therefore neither an intergovernmental conference, nor a pure parliamentary assembly, but a “mixed body”, in which Members of Parliament (of national Parliaments and the European Parliament) were in the majority.105 Overall, the convention method is a closerto-constitution-like procedure than the pure treaty revision procedure. The Constitutional Treaty of 2004 enshrined that method in the hard law. A “Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and the Commission”, was supposed to form a compulsory element of the ordinary procedure for revisions of the Constitutional Treaty. That Convention should “examine the proposals for amendments and shall adopt by consensus a recommendation to a conference or representatives of the governments” (Art. IV-443(2) TCE). The projected revision clause in Art. IV-443 TCE would not only have formalized the convention method but would also have moderately strengthened the existing constitutional elements of the formal revision procedure.106 The role of the European Parliament was to be expanded by a right to initiative and by its participation in the Convention. National Parliaments were to be notified in an early stage. Finally, the Council’s decision whether to examine the proposed amendments and convene a Convention were to be taken by majority vote (which corresponds to the current practice of convening an IGC). Thereby, the “contractual” rule of unanimity was explicitly discarded in the first phase, but was retained for the two ensuing phases: As under Article 48 TEU, the Intergovernmental Conference would have to decide by “common accord”, and the entry into force of any amendment would require the ratification by all Contracting Parties in accordance with their respective constitutional requirements (Article IV-443(2) and (3) TCE). To conclude, the revision procedure is a legal hybrid in which the constitutional elements have been continuously fortified, most recently in the new provision for the “ordinary revision” of the Constitutional Treaty itself. The hybrid, but steadily more “constitutionalised” character corresponds to the hybrid character of the Constitutional Treaty itself.

105 Thomas Oppermann, “Europäischer Verfassungskonvent und Regierungskonferenz 2002-2004: Zur ‘gemischten’ Entstehung der Europäischen Verfassung”, Deutsches Verwaltungsblatt 119 (2004), p. 1264 at p. 1268. 106 But see more cautiously de Witte, “Procédure de révision” (supra note 19), passim.

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7. Benefits of the Constitutionalist Reconstruction of European Law The constitutionalist reading of European basic rules and principles as a European Constitution of course comprises a creative moment. The constitutionalist reading presents the old texts in a new role. But on the hermeneutic premise that a primary and objective meaning of a legal text does not exist independently from the interpreter,107 the reconstruction of the European Treaties as a Constitution is an ordinary hermeneutic exercise. It is no distortion of norms which are “objectively” something else, but a legitimate form of interpretation. That interpretation makes sense because it serves to understand the European legal texts appropriately – and better. In this perspective, the question of a European Constitution is neither a purely political nor a merely terminological one (in the style of “Begriffsjurisprudenz”). Instead, the label “Constitution” does breed some “hard” legal consequences which will now be discussed. We shall first look at potentially bad consequences. The most important objection against the constitutionalist reconstruction is that – given the realities of Member States’ power – EU-law must content itself with a more or less “symbolic constitutionalisation”.108 In the eyes of the critics, such a reconstruction fraudulently creates the illusion of legitimacy of European governance. Constitutionalist language abuses the highly value-laden term “constitution” in order to draw profit from its positive connotations and to dignify the EU by it. Correspondingly or alternatively to that attempt of upgrading the EU, the concept of constitution is in the eyes of the critics debased by its application to the EU. But, turning the critique around, we can argue that the constitutionalist reading of the current European legal process has – on the contrary – a highly beneficial critical potential. The idea of a constitution is associated with the quest for a legitimate one, and has idealist and even utopian connotations (but not denotation). Therefore the constitutionalist reconstruction provokes the pressing question of legitimacy of European governance. Thereby, the constitutionalist reading allows to name both functional deficiencies and injustice. In consequence, the constitu107 Martin Heidegger, Sein und Zeit, 15th ed., Tübingen 1979 (1927), §§ 31-32 (pp. 142-153), esp. at p. 150: “Auslegung ist nie ein voraussetzungsloses Erfassen eines Vorgegebenen. Wenn sich die besondere Konkretion der Auslegung im Sinne der exakten Textinterpretation gern auf das beruft, was ‘dasteht’, so ist das, was zunächst ‘dasteht’, nichts anderes als die selbstverständliche, undiskutierte Vormeinung des Auslegers, die notwendig in jedem Auslegungsansatz liegt als das, was mit Auslegung überhaupt schon ‘gesetzt’, das heißt in Vorhabe, Vorsicht, Vorgriff vorgegeben ist.” 108 Marcelo Neves, Symbolische Konstitutionalisierung, Berlin 1998.

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tionalist reconstruction of EU-law rather helps than blocks the revelation of existing legitimacy deficiencies in this body of law, which does not and can no longer solely rely on Member States’ “sovereign” transfer of powers to the EU. Ultimately, the constitutionalist reconstruction of EU-law helps to promote a multilevel, genuinely global constitutionalism, which is apt to compensate for national constitutions’ growing deficiencies.

8. References Abbé Sieyès (1789), Qu’est-ce que le Tiers Etat, Paris, http://www.chd.univ-rennes1.fr/Chercheurs/ LeYoncourtT/SieyesTiersEtat.htm, 2005-02-21. Abromeit, H./ Hitzel-Cassagnes,T. (1999), ‘Constitutional Change and Contractual Revision: Principles and Procedures’, European Law Journal 5 (1999), 23-44. Ackerman, B. (1991), We The People, Vol. 1: Foundations, Cambridge (Mass.). Arnauld, A. v. (2003), ‚Normenhierarchien innerhalb des primären Gemeinschaftsrechts: Gedanken im Prozess der Konstitutionalisierung Europas’, Europarecht 38 (2003), 191-216. Aubert, J.-F. (1991), ‚La Constitution, son contenu, son usage’, Zeitschrift für Schweizerisches Recht 110/II (1991), 9-141. Binding, K. (1889), Die Gründung des Norddeutschen Bundes, Leipzig. Böckenförde, E. W. (1999), ,Die Zukunft politischer Autonomie: Demokratie und Staatlichkeit im Zeichen von Globalisierung, Europäisierung und Individualisierung’, in: Böckenförde, E. W., Staat, Nation, Europa, Frankfurt a.M, 103-126. Bogdandy, A. v. (Ed.) (2003), Europäisches Verfassungsrecht: Theoretische und dogmatische Grundzüge, Heidelberg. Bryde, B.-O. (1982), Verfassungsentwicklung, Baden-Baden. Burley, A.-M./ Mattli, W. (1993), ‘Europe before the Court: A Political Theory of Legal Integration’, International Organization 47 (1993), 41-76. Casper, G. (1978), ‘Remarks’, in: American Society of International Law (Ed.), Proceedings of the 72d Annual Meeting, Washington DC., 169-173. Commission on Global Governance (1995), Our Global Neighbourhood: The Report of the Commission on Global Governance, Oxford. Constantinesco, V. (1996), ‘L’Union européenne: par le droit ou vers le politique? (ad augusta per angusta?)’, in: Duprat, G. (Ed.), L’Union européenne, droit, politique, démocratie, Paris, 175-186. Cottier, T./ Hertig, M. (2003), ‘The Prospects of 21st Century Constitutionalism’, Max Planck UNYB 7 (2003), 261-328. Cruz Villalón, P. (2004), La Constitución inédita: Estudios ante la constitucionalización de Europa, Madrid. Curtin, D. M. (1993), ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’, Common Market Law Review 30 (1993), 17-67. Dahm, G./ Delbrück, J./ Wolfrum, R. (2002), Völkerrecht, Vol. I/3., 2nd ed. Berlin. Dorau, C. (2001), Die Verfassungsfrage der Europäischen Union: Möglichkeiten und Grenzen der europäischen Verfassungsentwicklung nach Nizza, Baden-Baden. Eijsbouts, W. T. (2005), ‘The European Way: History, Form and Substance’, European Constitutional Law Review 1 (2005), 5-11.

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Fassbender, B. (1998), UN Security Council Reform and the Right of Veto, The Hague. Favret, J.-M. (1997), ‘Le traité d’Amsterdam: Une révision à minima de la ‘Charte Constitutionnelle’ de l’Union Européenne’, Cahiers de droit européen 33 (1997), 555-605.. Friedrich, C. J. (1955), ‘Federal Constitutional Theory and Emergent Proposals’, in: Macmahon, A. W. (Ed.), Federalism: Mature and Emergent, Garden City (N.Y.), 510-533. Friel, R. (2004), ‘Providing a Constitutional Framework for Withdrawal from the EU: Art. 59 of the Draft European Constitution’, International and Comparative Law Quarterly 53 (2004), 407-428. Gaudin, H. (1999), ‘Amsterdam: l’échec de la hierarchie des normes?’, Revue trimestrielle de droit européen 35 (1999), 1-20. Gerkrath, J. (1997), L’emergence d’un droit constitutionnel pour l’Europe, Brussels. Giegerich, T. (2003), Europäische Verfassung und deutsche Verfassung im transnationalen Konstitutionalisierungsprozess: Wechselseitige Rezeption, konstitutionelle Entwicklung und föderale Verflechtung, Berlin. Grawert, R. (2003), ‚Wie soll Europa organisiert werden? – Zur konstitutionellen ‘Zukunft Europas’ nach dem Vertrag von Nizza’, Europarecht 38 (2003), 971-991. Grimm, D. (1995)‚ ,Braucht Europa eine Verfassung?’, Juristen-Zeitung 50 (1995), 581-590. Grimm, D. (2004), ‘Treaty or constitution? The legal basis of the European Union after Maastricht’, in: Eriksen, E. O./ Fossum, J. E./ Meníndez, A. J. (Eds.), Developing a constitution for Europe, London, New York, 69-87. Häberle, P. (2001/2002), Europäische Verfassungslehre, Baden-Baden. Hallstein, W. (1979/1962), ‚Die EWG – Eine Rechtsgemeinschaft’, in: Hallstein, W., Europäische Reden, ed. by Thomas Oppermann, Stuttgart. Hartley, T. C. (1995), ‘The Community Legal Order: A British View’, in: Mouton, J.-D. (1995) (Ed.), Vers une nouvelle constitution pour l’Union Européenne? – la Conférence Intergouvernementale de 1996, Trier, 57 -62. Hatje, A. (2001), ‚Die institutionelle Reform der Europäischen Union – der Vertrag von Nizza auf dem Prüfstand’, Europarecht 36 (2001), 143-184. Hatschek, J. (1922), Deutsches und preussisches Staatsrecht, Vol. 1, Berlin. Heidegger, M. (1979/1927), Sein und Zeit, 15th ed. Tübingen. Heller, H. (1963/1934), Staatslehre, 3d ed. Leiden. Herbst, T. (2002), Legitimation durch Verfassungsgebung: Ein Prinzipienmodell der Legitimität staatlicher und supranationaler Hoheitsgewalt, Baden-Baden. Hertel, W. (1999), Supranationalität als Verfassungsprinzip, Berlin. Isensee, J. (1987), ‚Staat und Verfassung’, in: Isensee, J./ Kirchhof, P. (Eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. I, Heidelberg, 591-661. Jacqué, J.-P. (1991), ‘Cour général de droit communautaire’, Collected Courses of the Academy of European Law I-1 (1991), 237-360. Jacqué, J.-P. (2004), ‚Der Vertrag über eine Verfassung für Europa: Konstitutionalisierung oder Vertragsrevision?’‚ Europäische Grundrechtezeitschrift 31 (2004), 551-556. Jellinek, G. (1882), Die Lehre von den Staatenverbindungen, Wien. Jellinek, G. (1914), Allgemeine Staatslehre, 3d ed. Berlin. Jennings, R. Y./ Watts, A. (1992), Oppenheim’s International Law, Vol. 1: Peace, 9th ed. Harlow. Kaufmann, M. (1997), Europäische Integration und Demokratieprinzip, Baden-Baden. Kelsen, H. (1925), Allgemeine Staatslehre, Berlin. Kirchhof, P. (1994), ‚Kompetenzaufteilung zwischen den Mitgliedstaaten und der EU’, in: Vertretung der Europäischen Kommission in der Bundesrepublik Deutschland (Ed.), Europäische

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Gespräche 2/94, Europäisches Forum: Die künftige Verfassungsordnung der Europäischen Union, Bonn, 57-67. Kokott, J./ Rüth, A. (2003), ‘The European Convention and its Draft Treaty Establishing a Constitution for Europe: Appropriate answers to the Laeken questions?’, Common Market Law Review 40 (2003), 1315-1320. Köppen, H. (2002), Verfassungsfunktionen – Vertragsfunktionen, Berlin. Korioth, S. und Bogdandy, A. v. (2003), ,Europäische und nationale Identität: Integration durch Verfassungsrecht?’, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 62 (2003), 117-155; 156-219. Kuntze, J. E. (1892), ‚Der Gesammtakt, ein neuer Rechtsbegriff’, in: Festgabe der Leipziger Juristenfakultät für Dr. jur. Otto Müller, Leipzig, 27-87. López Pina, A. (2004), Europa, un proyecto irrenunciable: La Constitución para Europa desde la teoría constitucional, Madrid. Marshall, G. (1984), Constitutional Conventions: The Rules and Forms of Political Accountability, Oxford. Martin Morlok, M. (2000), ,Grundfragen einer Verfassung auf europäischer Ebene’, in: Häberle, P./ Morlok, M./ Skouris, W. (Eds), Staat und Verfassung in Europa, Baden-Baden, 73-90. Monaco, R. (1974), ‘Le caractère constitutionnel des actes institutifs d’organisations internationales’, in: Mélanges offerts à Charles Rousseau, Paris, 153-172. Müller, J. P. (2002), Die demokratische Verfassung: Zwischen Verständigung und Revolte, Zürich. Murswiek, D. (1978), Die verfassungsgebende Gewalt nach dem Grundgesetz für die Bundesrepublik Deutschland, Berlin. Neves, M. (1998), Symbolische Konstitutionalisierung, Berlin. Norman, P. (2003), The Accidental Constitution: The Story of the European Convention, Bruxelles. Oppermann, T. (2004)‚ ,Europäischer Verfassungskonvent und Regierungskonferenz 2002-2004: Zur ‘gemischten’ Entstehung der Europäischen Verfassung’, Deutsches Verwaltungsblatt 119 (2004), 1264-1268. Orrego Vicuña, F. (2004), International dispute settlement in an evolving global society: constitutionalization, accessibility, privatization, Cambridge. Paine, T. (1996/1792), ‘The Rights of Man’, in: Conway, M. D. (Ed.), The Writings of Thomas Paine, Vol. II, London, 275-523. Pernice, I. (2001), ‚Europäisches und nationales Verfassungsrecht’, in: Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 60 (2001), 148-188. Peters, A. (2001), Elemente einer Theorie der Verfassung Europas, Berlin. Peters, A. (2004), ‚Europäische Öffentlichkeit im europäischen Verfassungsprozess’, Europarecht 39 (2004), 375-392. Peters, A. (2005), ‘Referendums on the Constitutional Treaty 2004: A citizens’ voice?’, in: Curtin, D./Kellermann, A.E./Blockmans, S. (Eds): The EU Constitution: The Best Way Forward?, The Hague 2005, pp. 39-57. Peters, A. (2006), ‚Grundlage europäischer Konstitutionalisierung: Die Entkopplung von Verfassung und Staat’, in: Liebert, U./Falke, J./Maurer, A. (Eds), Postnational Constitutionalisation in the New Europe, Baden-Baden, pp. 35-64.. Piris, J.-C. (1999), ‘Does the European Union have a Constitution? Does it need one?’, European Law Review 24 (1999), 557-577. Preuß, U. K. (1994), ‚Der Begriff der Verfassung und ihre Beziehung zur Politik’, in: Preuß, U. K. (Ed.), Zum Begriff der Verfassung: Die Ordnung des Politischen, Frankfurt a. M., 7-33.

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Rosenau, J. N. (1992), ‘Governance, Order, and Change in World politics’, in Rosenau, J. N./ Czempiel, E.-O. (Eds), Governance Without Government, Cambridge, 1-29. Saladin, P. (1995), Wozu noch Staaten?, Bern. Schmitt, C. (1928), Verfassungslehre, München. Schmitz, T. (2001), Integration in der supranationalen Union, Baden-Baden. Schuppert, G. F./ Bumke, C. (2000), Die Konstitutionalisierung der Rechtsordnung, Baden-Baden. Simon, D. (2000), ‘Les fondements de l’autonomie du droit communautaire’, in: Sociéte française pour le droit international (Ed.), Colloque de Bordeaux: Droit international et droit communautaire, perspectives actuelles, Paris 2000, 207-228. Smend, R. (1994/1928), ‚Verfassung und Verfassungsrecht’, in: Smend, R., Staatsrechtliche Abhandlungen, Berlin 1994 (1928), 119-193. Snyder, F. (2003), ‘The unfinished constitution of the European Union: principles, processes and culture’, in: Weiler, J. H. H./ Wind, M. (Eds), European constitutionalism beyond the State, Cambridge, 55-73. Stein, E. (1981), ‘Lawyers, Judges and the Making of a Transnational Constitution’, American Journal of International Law 75 (1981), 1-27. Steiner, U. (1966), Verfassunggebung und verfassunggebende Gewalt des Volkes, Berlin. Synder, F. (1995), ‘General Course on Constitutional Law of the European Union’, Collected Courses of the Academy of European Law VI-1 (1995), 41-155. Timmermans, C. (2002), ‘The Constitutionalization of the European Union’, Yearbook of European Law 21 (2002), 1-11. Rossi, L. S. (2002), ‘Constitutionnalisation’ de l’Union européenne et des droits fondamentaux’ , Revue trimestrielle de droit européen 38 (2002), 27-52. Triepel, H. (1899), Völkerrecht und Landesrecht, Leipzig. Verdross, A./ Simma, B. (1984), Universelles Völkerrecht, 3d ed. Berlin. Verhoeven, A. (2002), The EU in Search of a Democratic and Constitutional Theory, The Hague. Waelbroeck, M. (1964), ‘Peut-on parler d’un droit constitutionnel européen?’, in: Travaux et conférences de la Faculté de Droit de l’Université Libre de Bruxelles 1964 II, 75-82. Wahl, R. (2002) ‚Konstitutionalisierung – Leitbegriff oder Allerweltsbegriff?’, in: Eberle, C. E./ Ibler; M./Lorenz, D. (Eds), Der Wandel des Staates vor den Herausforderungen der Gegenwart: Festschrift für Winfried Brohm zum 70. Geburtstag, München, 191-207. Weiler, J. (1999), The Constitution of Europe: “Do the new clothes have an emperor?”, and other essays on European integration, Cambridge. Weiler, J. H. H. (1986), ‘Supranationalism Revisited – a Retrospective: The European Communities after 30 years’, in: Maihofer, W. (Ed.), Noi so mura: Selected Working Papers of the European University Institute, Florence, 341-396. Weiler, J. H. H. (2005), ‘On the Power of the Word: Europe’s Constitutional Iconoraphy’, in: Curtin, D./Kellermann, A.E./Blockmans, S. (Eds): The EU Constitution: The Best Way Forward?, The Hague 2005, pp. 3-20. Weiler, J. H. H./Haltern, U. (1996), ‘The Autonomy of the Community Legal Order – Through the Looking Glass’, Harvard International Law Journal 37 (1996), 411-448. Westlake, M. (1998), ‘The European Union’s ‘blind watchmakers’: the process of constitutional change’, in: Westlake, M. (Ed.) (1998), The European Union beyond Amsterdam, London etc., 16-33. Wichard, C. (2004)‚ ,Der Vertrag über eine Verfassung für Europa: Konstitutionalisierung oder Vertragsrevision?’‚ Europäische Grundrechte-Zeitschrift 31 (2004), 556-558.

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Wiener, A. (2004), ‚Die Verfassung Europas: Konturen eines europäischen Konstitutionalismus’, integration 27 (2004), 176-201. Witte, B. d. (1994), ‘Rules of Change in International Law: How Special is the European Community?’ Netherlands Yearbook of International Law 25 (1994), 299-317. Witte, B. d. (1996), ‘International Agreement or European Constitution?’, in: Winter, J. A. (Ed.), Reforming the Treaty on European Union: The Legal Debate, The Hague etc., 3-18. Wittgenstein, L. (1984), ‘Philosophische Untersuchungen’, in: Werkausgabe, Vol. 1, Frankfurt a.M. Witte, B. d. (2006), ‘La procédure de révision: continuité dans le mode de changement’, in: Kaddous, C. (Ed.), Les principes fondamentaux de la Constitution européenne, Geneva (forthcoming). Zoller, E. (1998), Droit constitutionnel, Paris. Zorn, P. (1880), Das Staatsrecht des Deutschen Reiches, Vol. 1, Berlin.

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Getting to a European Constitution: From Fischer to the IGC Brigid Laffan1

1. Introduction On the 18th of June, 2004, Mr. Bertie Ahearn, the Irish Prime Minister, as Chair of the European Council, announced the successful conclusion of the negotiations on a Treaty to establish a Constitution for Europe. This was a historic moment for the Union as it marked the successful conclusion of the fifth episode of treaty negotiations since the mid-1980s. Moreover, its achievement went beyond previous efforts at treaty reform for two reasons. First, the IGC was proceeded by a Convention, an institutional form that altered the negotiating and bargaining process by widening access to the deliberations on treaty reform and going beyond the confines of national governments. Second, the member states agreed a Constitution for Europe, a document that went beyond the existing constitutional architecture in the form of treaties. The origins of the Constitution may be traced right back to the Schuman Declaration in 1950, the Rome Treaties of 1957, the seminal judgements of the European Court of Justice in 1963/64, and the other periodic episodes of treaty reform in the Union. As an ideal and idea, it owes something to the lifelong conviction of Altiero Spinelli, a committee federalist, that the Monnet method of incremental integration had to be complemented at some stage by political integration. Spinelli, an MEP in the first directly elected European Parliament, established the ‘Crocodile Club’ of like-minded MEPs to encourage the parliament to prepare a constitution for the European Union. On February 14th, 1984, a significant majority of MEPs, 237 to 31 with 43 abstentions adopted a draft treaty. Altiero Spinelli, visited all of the member state capitals in his efforts to get national governments animated on the constitution. Although he failed to convince them of the need for the draft constitution, the member states did launch the first major reform of the Rome Treaties in 1985, which resulted in the Single European Act. The Single Act was followed by four further episodes of treaty change that culminated in the agreement establishing a Constitution for the Union in June 2004, under the Irish Presidency. 1

Jean Monnet Professor of European Politics, University College Dublin, [email protected].

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The aim of this chapter is to provide an overview of the process that led to the European Constitution.2 A phased approach is adopted that traces the evolution of the Constitution from the launch by Joschka Fischer, the German Foreign Minister, of a debate on the Future of Europe in May 2000 to the Laeken Declaration in December 2001, the establishment of a Convention that opened in February 2002 and ended its work in July 2003, and the IGC that agreed the new treaty in June 2004. The political debate, deliberation and negotiation that characterised this episode of constitutional reform in the Union was accompanied by a very extensive scholarly debate on the nature of constitutionalism in the European Union, the character of the Union’s constitutional development and the interpretative frame that should be applied to the draft Constitution agreed among the member states. There is debate about whether or not the new Constitution reflects a ‘constitutional moment’ in the history of the Union (Walker 2003), whether or not Europe needs a constitution (Grimm 1995), what kind of constitution Europe needs (Craig 2003), and why Europe needs a constitution (Habermas 2001). Critical legal theorists and normative political theorists sought to explore, criticise or justify this phase of constitution building in the Union. Just like the practitioners, theorists grapple with explanatory and interpretative frames for the novel character of the European Union and its constitutional architecture.

2. An Analytical Framework Scholars exploring the dynamic of constitutional change in the European Union draw on a range of different theories and analytical frameworks to explain the complex process of constitutionalism in the Union. Moravcsik’s liberal intergovernmental approach privileges the role of national executives as strategic actors in the negotiations that surround the ‘big bargains’. His emphasis is on domestic preference formation followed by interstate bargaining at EU level, a classical two level game. Falkner and others emphasize the link between the day to day bargains and the big IGC decisions. Their approach is both constructivist and institutionalist with an emphasis on path dependency, supranational agency, ideas and norms (Falkner 2002, Neunrither/ Weiner 2000). Rather than privileging one macro-theoretical approach over another, 2

The empirical material presented here is based on a series of in-depth interviews with a number of key players in the IGC negotiations When quotes are used those quotes are based on interview material. For reasons of confidentiality, it is not possible to directly attribute the quotes.

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this chapter adopts a ‘process approach’ that explores different phases of the deliberative and negotiating process that sequentially framed the Constitution. The four phases are outlined in Figure I. The first key phase was the framing phase that began in May 2000 when Joskha Fischer, the German Foreign Minister launched a debate on the ‘Future of Europe’. This debate was a reaction to and further underlined the limits of the negotiations that were taking place in the Nice IGC and the IGC method itself. Fischer created a dynamic that created political space for a discussion beyond the technicalities of Nice both in terms of substance and process. Ideas dominated the discourse during this phase but the ideas put forward by the various member state actors reflected deeply held preferences about European governance. Kohler-Koch underlined the importance of framing in the process of institution building and change (Kohler-Koch 2000, 515). Framing is understood as a sequential process, ‘a first situational cue’ that helps to ‘interpret an undetermined complex reality’ that may ‘orient the choice of action’ (Kohler-Koch 2000, 515). The argument here is that Fischer launched a framing phase but was unable to ensure that his preferred frame became the dominant one. Phase II began with the Belgian Presidency in 2002. The Belgian Government took up the opportunity offered by the ‘Future of Europe’ debate; they effectively used the chair to press for the Convention method and for a broad discussion on the Union’s future constitutional architecture. Faced with the competing frames that characterised phase I, the Presidency used its agenda setting opportunity to inject momentum to the process of constitutional change. The Laeken phase was dominated by agenda setting and a debate on the methodology of a Convention. The Laeken declaration itself was very broad and contained within it the competing frames that were evident in phase I. By including a broad range of questions, the Belgian presidency secured agreement from all member states to a Convention and a subsequent IGC. Phase III opened with the Convention and ended when the Convention President delivered an agreed text to the Greek Presidency in July 2003. The Convention in turn was characterised by an admixture of framing, agenda setting, arguing and classical bargaining. The Convention had to take the questions contained in the Laeken Declaration and distil them into an agenda for the Convention. Moreover, it had to arrive at an agreed set of structures and procedures to guide the work of the Convention. The fourth phase, the Inter Governmental Conference (IGC) itself, was of relatively short duration. Member state representatives were back in charge of the negotiations but they were not free to determine the IGC agenda. Effectively, they were dealing with the outstanding issues that emerged from the Convention. This

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phase was characterised by an admixture of bargaining and arguing within the limits of the Convention text. Phase I 05/00-09/02

Phase II 09/02-12/02

Phase III 03/02-07/03

Framing Period

Agenda Setting Process and Substance

Convention Constitution for Europe

Phase IV 07/03-06/04 IGC Constitution for Europe

Figure 1: Phases in the Making of a Constitution

3. Phase I: Competing Frames In May 2000, a lively debate on ‘The Future of Europe’, was launched by Joschka Fischer, the German Foreign Minister, at the Humboldt University in Berlin. This debate reflected past debates on the EU’s political order and was characterised by very different preferences about the future of the EU. It is beyond the scope of this chapter to analyse in great detail the varying views put forward by Europe’s political leaders in this period. Suffice to say that in the shadow of the Nice Treaty negotiations, a substantive debate took place on the future architecture of the Union and extensive references were made to a European constitution. The perspectives ranged from largely federalist approaches to those adopting a sovereigntist perspective. Mr. Fischer was one of the first political leaders to address the finalité of the European project. In his speech, Fischer advocated the ‘full parliamentarisation as a European federation……a European parliament and executive power’. He endorsed the creation of a bicameral legislature and a European government. According to Fischer, the federation would be based on a constituent treaty (Fischer 2000, 2). Mr. Fischer reintroduced the concept of a constitution to the European debate. The Fischer model was federalist in character, modelled on the German federalist experience. Although he spoke in his personal capacity, the Humboldt speech launched a constitutional debate in the Union that culminated in the June 2004 agreement. Other political leaders felt obliged to respond to Fischer with their own conceptions of Europe’s future institutional and constitutional architecture. The various contributions reflected national concerns and concepts about the EU. The French President, Jacques Chirac and his then socialist prime minister Lionel Jospin, in their numerous contributions to the debate, focused on the identity di-

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mension of the project. While asserting the continuing importance of the national element, Lionel Jospin in May 2001 emphasised that Europe was a political undertaking and that ‘content’ must come first and framework second. The focus of his speech was on the societal programme that Europe should project. While asserting the continuing importance of the national element of the traditional nation state, Jospin favoured the concept of a ‘Federation of Nation States’ because for him this concept ‘reflects the constituent tension which underpins the European Union. There are nations, strong, vibrant nations for which identity is important, which constitute the wealth of our continent. And then there is also the determination of these nations to unite, to build an entity, together which will make each constituent part stronger’ (Jospin 2001). Jospin would accept a ‘federation’ if this is taken to mean ‘a gradual controlled process of sharing competencies or transferring competencies to the Union level’. Jospin was implicitly rejecting the Fischer approach. Preserving nations and national identity remained central to the preoccupations of the two French political leaders. For them federation did not mean moving the Union in a statal direction. Tony Blair, the British Prime Minister, in his Warsaw speech, made the most significant British contribution to the debate October 2000. The speech demonstrated the considerable change in the tone and substance of Britain’s European policy under the Blair administration. The focus in the Blair speech was on the central role of the European Council as the centre of political authority in the Union. Blair addressed the question of a constitution and suggested that like the British constitution, the Union’s constitutional edifice should continue to be crafted from a variety of sources rather than one single constitutional document. He advocated the development of a statement of principles, i.e. a charter of competencies that would be overseen by a second parliamentary chamber consisting of representatives of national parliaments. This oversight body would have a political rather than legal remit and would thus limit the scope for judicial review in the Union on the question of competence. Although not fully supporting the Fischer model, the Benelux states agreed a joint memorandum in June 2001 that had as its central foci, a constitution for the European Union and an adapted institutional structure. The constitution would involve a simplification of the European treaties into two parts, a part dealing with basic constitutional issues and a section devoted to policy areas. Concerning institutional adaptation, the Benelux memorandum called for a strengthening the Community method, the granting of a legal personality to the Union, an enhanced role for the EP, election of the Commission president, collective and individual dismissal of Commissioners, dissolution of the EP, ratio-

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nalisation of the work of the Council, generalised use of QMV and increasing the consistency and efficiency of the EU’s external action and representation. (Benelux Memorandum, June 2001). The framing phase highlighted the continued existence of competing frames about the future direction of the EU. A diversity of frames was not unexpected. They reflected deeply held preferences about the future of the EU and normative frames about political order. Fischer drew on federalist, largely German, analogies, Chirac and Jospin on concepts of statehood, and Blair on the organic development of the United Kingdom. Rather than one dominant frame, those building the EU as a political order would continue to work within a framework of competing frames. However, this phase of addressing the finalite left two distinct legacies for the subsequent process. First, the idea of a constitution was placed firmly on the agenda and second, it would be impossible to restrict the deliberations to the Nice ‘leftovers’.

4. Phase II: Agenda Setting The Belgian Prime Minister, Guy Verhofstadt, was determined to use the mandate from the Nice European Council in December 2000, to push the Benelux agenda during the Belgian Presidency of the Union during the second half of 001. The presidency has two aims. First, it sought to establish a wider agenda than the limited Nice ‘left overs’ and second, it sought a new process of treaty change. The Nice Conclusions listed four areas for consideration by a future Inter Governmental Conference (IGC), (a) incorporation of the Charter into the EC Treaties; (b) simplification of the Treaties; (c) the delineation of EU and national competencies and (d) the relationship between national parliaments and the EU system. Prime Minister Verhofstadt used the Belgian Presidency to get agreement from the member states on an innovative process of constitutional reform, by establishing a Convention, under the rubric of an agreed declaration, the Laeken Declaration, of December 2001 by the European Council (Magnette/Nicolaidis 2003, 386-388). The Belgian Presidency ensured that the debate on the Future of Europe would lead to concrete outcomes. The selection of the Convention formula, already tested during the framing of the charter on rights, marked an important breakthrough in the traditionally closed process of treaty change. Political actors beyond domestic core executives were given access to the process. The Belgian Presidency also played an important role in framing the agenda for the Convention and IGC. The Laeken Declaration established four broad areas for deliberation by the Convention. These were:

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●

A better division and definition of competence in the European Union; Simplification of the Union’s instruments; More Democracy, transparency and efficiency in the European Union; Towards a Constitution for European citizens (Laeken Declaration, europa.eu.int.futurum/documents). These four concerns were broken down into broad themes, which were further divided into approximately 50 specific questions. The Laekan Declaration was sufficiently broad and non-directional to embrace the concerns of all of the member states. Reflecting the presence of competing frames, it did not privilege either a federalist or sovereignist agenda for the Convention/IGC but it read more like a ‘constitutional agenda than the basis for a classic treaty reform’ and ‘went beyond the restricted list of left-overs agreed at Nice (Magnette/Nicolaidis 2003, 388). See Figure 2 for a list of the most important questions.

● ● ●

A better division and definition of competence in the European Union ● ● ●

How the division of competence can be made more transparent? Should there be a reorganisation of competence? How to ensure that a redefined division of competence does not lead to a creeping expansion of the competence of the Union? Simplification of the Union’s Instruments

●

Should the Union’s various instruments be better defined and should their number be reduced? More democracy, transparency and efficiency in the European Union

● ● ●

How to increase the democratic legitimacy and transparency of the existing institutions? What is the appropriate role for national parliaments? How to improve the efficiency of decision-making and the workings of the institutions in a union of some 30 states? Towards a Constitution for European citizens

● ● ● ●

Should the existing treaties be simplified? Should there be a reorganisation of the treaties? Should the Charter of Fundamental Rights be included in the basis treaty? Should this lead in the long term to the adoption of a constitutional text in the Union? Europa.eu.int.futurum/documents

Figure 2: The Laaken Declaration: Scope and Key Questions

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5. Phase III: The Convention Phase The European Council agreed the format of the Convention. Its membership was drawn from the national governments, national parliaments, the Commission and the European Parliament. The Convention consisted of 15 representatives of the member states, 30 members of the national parliaments, 16 MEPs and 2 Commission representatives. Each candidate state had three representatives who took part fully in the deliberations of the Convention without being able to prevent a consensus emerging among the member states.3 There were 105 full members of the Convention and 210 members in all. This number was augmented by policy advisors, observers, and a Secretariat. The Convention was chaired by the former French President, V. Giscard d’Estaing aided by two former prime-ministers, Jean Luc Dehaene of Belgium and Giuliano Amato of Italy. The work of the Convention was organised and regulated by a Presidium consisting of 13 members. Effectively, the Convention met in plenary, in working parties and in the presidium. The Presidium set the agenda and organised the work of the Convention. The Convention met between March 2002 and July 2003; on the 20th of June 2003, the Convention’s President presented a draft treaty establishing a Constitution for Europe to the European Council meeting at Thessaloniki. The Convention, which began with an open mandate concerning the constitutional question, produced a document that achieved broad consensus among the delegates to the Convention. The Convention began with what its President called a ‘listening phase’ during which preparatory work was done in a series of working group, ten in all, on issues such as subsidiarity, Charter of Fundamental Rights, the role of national parliaments, JHA, economic governance and so on (European-convention.eu.int). None of the agenda issues were new. The EU has grappled with all of these issues in previous IGCs. The Convention did not establish a working party on institutional issues, arguably the most sensitive and charged issue on the agenda. The ‘listening phase’ ended with the publication by the Convention’s Praesidium of a Preliminary Draft Constitutional Treaty on 28th October 2002. This signalled the beginning of the working phase of the Convention. The draft treaty 3

The 15 representatives of the member state governments were augmented by 13 representatives from the candidate states including Bulgaria, Romania and Turkey. Those representing national governments amounted to about 25% of the Convention. The representatives of the national parliaments amounted to over 50% of the total Convention. That said they lacked a familiarity with the EU in many cases; MEPs although small in number contributed significantly to the debates. They had according to some observers, ’home advantage’ (Dehousse R. and Deloche-Gaudez, 2004).

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was a shell document that was filled in over the remaining life of the Convention. The fact that a Convention consisting of so many members, member state representatives, national parliamentarians and representatives of EU institutions agreed a single document rather than a series of options and papers lent considerable weight to its agenda setting power for the Intergovernmental Conference (IGC) that succeeded it. The Convention was a large multilateral exercise in deliberation and bargaining with the Presidium and its leadership acting as a central node. The formal work of the Convention was augmented by continuous meetings of the different constituencies (government representatives, parliamentarians, meetings of political families) and innumerable informal linkages between different participants. The Convention was a market place for ideas about constitutional and institutional reform of the Union. Individual parliamentarians, member state representatives, candidate members and Commission representatives deployed their speaking time, the deliberations of the working groups, informal contacts and membership of the Presidium to feed ideas into the process and shape the outcome (Norman 2003). The Convention text was the product of deliberations in working groups and in the plenary and hard bargaining in the Presidium and in informal arenas. In the final period of the Convention (first half of 2003), the serious drafting stage, the underlying cleavages at the Convention became evident. The cleavages included the traditional one between those states favouring a ‘federalist’ outcome and those favouring an ‘intergovernmental’ or ‘sovereignist’ outcome. In addition, the underlying tension between large and small states at Nice became more pronounced in the Convention. A Franco-German paper debated in January 2003 proposed a long-term President of the European Council. The proposal was roundly condemned during a plenary session of the Convention and led to a reaction from the small member states. In March 2003, the representatives of 16 of the smaller states submitted their own paper on institutional issues to the Convention (Norman 2004, 183-185). Towards the end of the Convention, the question of weighted voting led to an additional cleavage involving Spain. Its representatives clearly signalled that they were fundamentally opposed to tampering with the Nice voting system. This issue would continue to fester and reemerged as a critical issue in the subsequent IGC. Notwithstanding the difficulties, the President of the Convention, achieved his aim set out in at the first meeting of the Convention to arrive at a ‘broad consensus on a single proposal’ (quoted in Norman 2004, 319).

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6. Phase IV: From Convention to IGC The draft Treaty agreed by the Convention and submitted to the European Council was the default document for the subsequent Intergovernmental Conference (IGC). The task of the IGC was not to begin to draft a Constitution. Rather its purpose was to reach agreement among the member state governments’ on an acceptable version of the Convention text. The IGC was dominated by the evolution of the text. The German government, in particular, sought the adoption of the Convention text with only minor alterations whereas most other states felt that wider changes were necessary to arrive at an acceptable text. The member states’ did not however want to unravel the entire Convention text fearing that agreements already arrived at might come unstuck. The task was to identify the sensitive or contentious issues that required negotiation but that left a major part of the text untouched. The IGC did not alter the structure of the constitution nor most of its substantive content. It is estimated that the IGC dealt with between 10 and 15% of the Convention text. In a number of areas, the Convention facilitated agreement on issues that would have been very difficult for national governments in direct multilateral negotiations. The style of bargaining that animated phases of the Convention’s deliberations enabled the participants to reach agreement on a series of difficult issues. Among the achievements of the Convention were: ● Agreement on a legal personality for the Union; ● Abolition of the pillar structure; ● Agreement on a constitutional treaty; ● Incorporation of the charter; ● Strengthening of the external capacity of the Union; ● Agreement on the constitutive values and objectives of the Union. There were a number of areas, however, that had to be revisited by the IGC because of their sensitivity to one or more states. The Italian Presidency formally opened the IGC on October 4th 2003. This was preceded by a series of bilateral meetings with the member state governments from July onwards. Unlike previous IGCs, the 2003/2004 IGC met predominantly at political level, Foreign Ministers and European Council without formal working groups. This reflects the fact that the major preparatory work and the drafting of text had already been achieved by the Convention. The Italian Presidency asked the member states to show restraint with regard to the number of non-institutional issues they wanted reopened so that attention could focus on the highly contentious institutional issues. Among the non-institutional issues that remained sensitive were; (a) a reference to God in the preamble, (b) economic governance, (c) defence co-operation, (d) the modalities for incorporating the Charter and (e) Justice and Home Affairs (JHA). The insti-

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tutional issues remained, however, extremely salient and highly contentious. The key issues were: ● The composition of the Commission; ● The system of weighted voting in Council; ● The Presidency of the European Council and the Council of Ministers; ● The number of issues that would move from unanimity to QMV; ● The role of the Foreign Minister and the decision making in CFSP and ESDP. These issues related to the nature of decision making in the Union, the voice and representation of the member states, and member state control over sensitive areas. The outcome on these issues was the result of a ‘classical package deal’ among the member states facilitated by the mediation of the Presidency and multiple bilateral contacts with all of the member states. Three cleavages were apparent on these issues. First, there was a cleavage between those states that favoured more intergovernmental control and those that favoured supranational outcomes. Germany, France, Italy, Greece and the Benelux generally favoured shifting more policy areas to QMV than those with a more intergovernmental approach. The United Kingdom was to the fore on this issue with a series of red lines on which it would not move. Second, there was a cleavage between large and small states about membership of the Commission and voting weights. During the Convention, the small states established a group called Friends of the Community method. This was followed by meetings in September 2003 among a large group of small states that favoured the retention of the principle of one Commissioner per member states. Third, there was a cleavage between the large states and medium sized states about weighted voting. The Convention text proposed the introduction of a voting system based on a double majority, majority of member states and states representing over 60% of Europe’s peoples. This shift from the traditional QMV system was bitterly opposed by Poland and Spain who issued a joint statement on September 29th 2003 rejecting the new system. These cleavages must been seen against the background of the faultlines generated by the Iraq war. This had adversely affected personal relations between President Chraic and Tony Blair, the British Prime Minister and Aznar the Spanish Prime Minister. On November 26th, the Italian presidency published a set of compromise proposals for a Conclave of Foreign Ministers (28th/29th November) designed to prepare for the December 12/13 European Council. At this stage, the December Council was regarded as the ‘end game’ of the IGC. Following the Naples meeting, where progress was made on a number of issues, the Italian Presidency issued a paper on defence (CIG 57/03, 2nd December 2003) and re-issued it draft proposals for dealing with 44 contentious issues (CIG, 60,03, 9th December

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2003). In the event, the December European Council failed to conclude the negotiations. Neither the Spanish nor Polish Governments were prepared to sign up to the double majority voting system.

6.1 The Irish Presidency Following the failure of the December Summit, the Irish presidency took over responsibility for the IGC. The key contribution of the Italian Presidency was a break-though on security and defence that was not substantially re-opened during the Irish Presidency. Given the sensitivity of this dossier for Ireland, it facilitated the work of the presidency that these issues were essentially closed. In the December European Council Conclusions, the Presidency was mandated to ‘listen, assess and report’ back to the European Council in March 2004. The Presidency was not asked to conclude negotiations because it was far from clear in December that this would be possible. The Irish Prime Minister decided over Christmas to prioritise the IGC and to do everything possible to end the negotiations. The message to his officials was clear. The Irish Presidency would ‘give it a real go’, meaning that there was a commitment to doing everything that the Presidency could do to conclude the negotiations. Arising from the cleavages identified above, the presidency was left with three sets of issues to resolve. First, there was the institutional basket, which encompassed QMV, the Commission and the distribution of seats in the EP. Second, there was the number of items that would be moved from unanimity to QMV. Third, a bundle of outstanding issues that were of importance to one or a small number of member states. The December mandate meant that the Presidency’s management of the IGC consisted of two phases. Phase one, which ran from January to the end of March, involved of a series of very intensive bilateral meetings at political and official level with all member states. The presidency wanted to ensure that all member states felt that their concerns were listened. The experience of representing a small state, led the Irish team to pay considerable attention to ensuring that all states, large, medium and small were listened to and that their concerns were heard. The aim of the presidency was to be a fair and honest interlocutor in the negotiations. The presidency in its analysis identified QMV as the major issue to crack. It involved bridging the considerable gap between Spain and Poland, on the one hand, and Germany and France, on the other. In a January interview with Der Spiegel, the Taoiseach signalled that in his view the solution to the conflict about voting weights would lie in some form of double majority. Thus at an early stage, the Taoiseach signalled to the Poles and Spanish that the retention of the NICE voting

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weights was unlikely and that they needed to begin to frame a compromise within the terms of a double majority. The presidency began to float possible adjustments to the Convention weightings at this stage. Meetings were held with each of the relevant member states and in early February a meeting was held with all four states and the United Kingdom. Among this group of states, Germany signalled that it was prepared to compromise. The Spanish began to focus on the population threshold and the Poles were seeking a revised form of the Innoniani compromise. The French, particularly President Chirac did not signal that he was prepared to move from the Convention text until the week of the March European Council. The QMV cleavage between the larger and middle sized states was widened to include the small states in the latter half of the negotiations. A group of small states led by Austria was concerned the 10% gap between the number of states and the percentage of the population privileged the larger states. This group consisted of Austria, many of the new smalls and Finland. The Benelux, Sweden and Denmark were in the centre on this issue and did not put their weight behind the groups of small states that emerged. Working at both official and political level in a process of ‘engaged listening’ the atmosphere surrounding the negotiations improved considerably early March 2004. The member states were engaged and there ‘was a growing sense of possibility’, according to one of the central Irish players. Following the bilateral phase, the Dublin team was in a position to judge on where solutions might lie on the outstanding issues. Although none of the member states had actually given up their negotiating positions by March, all member states were positive about reaching a final agreement during the Irish Presidency. This implied compromise and a shifting of positions by some member states. The Madrid bombings and the change of government in Spain dramatically altered the political context within which an IGC was conducted. It brought to power a Government that was willing to compromise. By March, the Irish presidency was sufficiently confident that it could conclude negotiations by the end of June. The Spring European Council gave the go ahead for the completion of the negotiations in June. Although it was not explicit about the nature of the deal, the parameters were becoming clearer. The second phase of the Presidency consisted of a further pre-IGC bilateral phase in April as the new Spanish Government was installed and the IGC proper that re-convened in May. The IGC itself consisted of a meeting at official level on May 4th (Focal Points), three ministerial meetings (17-18 May, 24 May and 14 June) and the European Council (17-18 June). The formal meetings were augmented by continuous bilaterals at official and political level with all member states. The presidency had to manage the dossier so that there were a sufficient number of

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meetings to get the work done but not so many that already agreed issues would be re-visited. According to one participant, the presidency needed enough ‘meetings to clarify and solve but not unravel’. There were four baskets of issues reflecting different gradations of conflict and difficulty as the IGC entered the end game. These were: 1. the outstanding institutional issues; 2. the extension of QMV, 3. Common commercial policy, equality of the member states; 4. issues that were important to individual member states (mention of islands for Greece. The issues on which there was broad agreement related to the parts of the Convention text that had been accepted and the agreements arrived at during the Italian presidency, notably the defence area. The paper prepared for the focal point meeting at official level on May 4th had 50 annexes, which indicated the number of outstanding issues that remained on the table. This was the first time that the presidency committed itself to paper. The paper did not include proposals relating to QMV, the issue that remained the most politically charged in the negotiations. The presidency objective was to get agreement on the outstanding issues so that only the most contentious ones would remain on the table for the European Council. The Prime Minister, Mr. Bertie Ahearn, insisted that as much as possible should be agreed going into the June Council so that political energy could be deployed to reach consensus on the most contentious issues. He was mindful of the experience of the Nice European Council in December 2000, the longest European Council in the history of the Union. Following the May focal point meeting, the Presidency adopted its end-game strategy for the remainder of the IGC by preparing two documents for the Foreign Ministers meeting on 17-18 May. During this phase of the negotiations, the Presidency worked closely with the Council Presidency creating texts and receiving advice from senior Council officials (Council Secretariat) whose political judgement and legal skill were an important support to the Presidency. The Council Secretariat contributed (1) draft texts, (2) political acumen and (3) intelligence from the member states permanent representations in Brussels. The two documents produced for 17-18 May channelled the negotiations for the remainder of the IGC. Although the presidency maintained the official position that ‘nothing is agreed until everything is agreed’ right to the end, it presented two papers to the ministerial meeting: A Closed Document: consisting of 43 annexes representing of those issues on which the Presidency maintained there was ‘broad consensus’ and on which there was no need for further ministerial discussion.

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An Open Document: consisting of 15 annexes covering those issues on which further debate was necessary. Again the presidency did not offer new proposals on weighted voting but included ideas concerning the composition of the Commission. In other words, it began to introduce the institutional issues on a phased basis, with the intention of building momentum of agreement. Following the May ministerial meeting, the Presidency produced a further paper (CIG 79/04) providing a revised set of draft texts. The texts were broadly agreed and would not be re-opened at the European Council. By this stage of the negotiations, the closed document, consisting of 49 annexes, was getting progressively thicker. The ministerial meeting on June 14th was designed to get further agreement on as many outstanding issues as possible prior to the European Council. The ministerial meeting document (CIG 80/04) dealt with 13 different issues aimed at delivering a ‘fair overall balance between different delegations’ views’, according to the presidency document (CIG 80/04, 1). The second cleavage concerning the number of issues that would be moved from unanimity to QMV was largely dealt with during this phase of the negotiations. The cleavage here was between the UK on the one hand and the French and Germans on the other, with other member states taking up individual issues. For example, unanimity on the financial perspective was critical to the Netherlands. There were four sets of issues in the QMV/unanimity basket. These were taxation, JHA, CFSP and ‘own resources’. A number of informal bilaterals between Blair, Schroder and Chirac did not break the deadlock, which led the presidency to convene two meeting involving all three states to attempt to find a way through the impasse. The UK approach to this basket of issues was meticulous. The text was scrutinised carefully and was unwilling to sign up to a text that contained ambiguities about matters of importance to them. By and large the UK held to their red lines, particularly on taxation and own resources. France and Germany had to be content with enhanced co-operation and the existence of a passerelle from unanimity to QMV in the JHA area. The intensity of the UK preference was such they were unwilling to concede except at the margins. Nor were they on their own. On taxation, they had the support of the Irish, Estonians, Slovaks, and the Maltese and Poles to a more limited extent. On JHA, they had the support of Ireland, Portugal and the Netherlands. Although the UK versus France and Germany was the main cleavage relating to the move from unanimity to QMV, there were other issues of critical importance to one or two member states. For example, the relationship between social security, health and trade in services was identified as a major issue by Finland and Sweden. The presidency was surprised that the contentious QMV issues were largely dealt with prior to the European Council.

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Building on accumulated agreements from the earlier meetings, the Presidency prepared its final papers for the European Council, the arena in which agreement would or would not be achieved. Prior to the June Council, the Prime Minister re-instated the tour of capitals to ensure that the member states had an opportunity to emphasize their concerns in a bilateral format prior to the multilateral end game. Moreover, the visits enabled the prime minister to develop a sophisticated grasp of the issues and the attitudes of his counterparts. The member states were again given two papers, the open and closed documents, immediately prior to the European Council meeting. The closed document (CIG 81/04) had 57 annexes representing broad agreement on the text. The open document (CIG 82/ 04) was a discussion document designed to structure the debate on the outstanding institutional and non-institutional issues. Concerning the institutional issues, the presidency outlined its thinking on QMV, seats in the EP and made specific proposals on the composition of the Commission. The paper also dealt with a number of non-institutional issues relating to economic governance, the multi-annual financial framework and the legal status of the Charter. Following discussion on the 17th of June, the Presidency made further proposals on the 18th in a document containing 14 annexes, which represented the critical issues at the end of the negotiations. Following intense bilateral discussions, the European Council agreed the final text on the evening of the 18th. The key break through was agreement on the institutional package, the Commission, definition of qualified majority voting, seats in the EP and the implementation rules of the new system of QMV. The strategy of the Presidency was to accumulate agreement by establishing a closed document, to reduce the number outstanding issues to a minimum for the European Council and to search for an ‘overall and balanced agreement’ (CIG, 84/94,1). The documents prepared by the Presidency are replete with references to ‘balance among all Member States’ and an ‘overall balanced outcome on the institutions’ (CIG 82/04,2). The IGC moved from the least contentious issues to the most contentious ones at the final European Council. The outcome of IGC was based on the Convention document with due regard to those issues that remained sensitive for one or more member state. Given the failure of December 2003, agreement on the constitution by June 2004 was testimony to the political and diplomatic skill of the Irish Presidency and the robustness of the Union’s negotiating capacity. It is all the more remarkable because it was a negotiation for 25 not 15 that coincided with the most extensive enlargement in the history of the Union. Following a contentious debate about the Presidency of the Commission on the first day of the European Council, there was a danger that the IGC could become embroiled in this conflict or that the poor atmosphere could damage the changes of agreement. In the event, it became clear that the member states were

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ready for agreement. The role of the President of the Council and his officials was to tweak the document so that broad agreement was arrived at. Following a series of bilaterals, the European Council was re-convened and it became immediately clear that agreement had been reached when a number of prime ministers took the floor to congratulate the President of the Council for successfully concluding the negotiations. The first intervention of this kind from the Danish Prime Minister was met with a round of applause. It was then over to the legal drafters to prepare the final document. A senior presidency official offered five ‘insider’ lessons from the negotiations.4 First, was the importance of political leadership and the skill to call the negotiations. The Irish Prime Minister has considerable negotiation skills honed in his early ministerial career as a Minister for Labour. This required him to negotiate with trade unions during a very tense period in Irish industrial relations. His negotiating skills were further developed in the evolution of social partnership, a form of corporatism that characterises contemporary Irish government. Together with Tony Blair, Bertie Ahearn has been intimately involved in negotiating the Good Friday Agreement and in managing the subsequent peace process in Northern Ireland. This experience of complex negotiations gave him the political skill to manage the IGC end game. During the Presidency, the prime minister managed the political dimension of the negotiations by consulting with his counterparts on a continuous basis and by making the key judgements about where solutions lay. This confirms the role of the head of government and state in high level EU negotiations. Second, the official level in Ireland was a very small team under the leadership of the head of the EU division, who was closely involved in previous treaty negotiations and who was deeply knowledgeable about the institutions and processes of the Union. Irish management of EU affairs is characterised by a high level of trust between the political and official level and a high level of inter-ministerial trust. The Irish IGC team were left to get on with the task of concluding the negotiations without having to engage in extensive internal negotiations. Third, senior specialists in the Council legal service play an important role in an IGC. They have considerable experience at drafting, are deeply knowledgeable about the participants in the negotiations, and an institutional memory of previous IGCs. Fourth, it is important to give time and respect to all participants in the negotiations, the member states but also the Union’s institutions. Fifth, the management of negotiations involves seeking and testing solutions and managing the flow of the negotiations so that the presidency assists rather than hampers agreement. 4

These insights have been expanded by the author of this piece.

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7. Getting to a Constitution A volume on the Convention, published in 2003 was called ‘The Accidental Constitution’ (Norman 2003). Among the synonyms for accidental are unintended, unplanned, or chance. There was nothing accidental about the European constitution. It may have unintended consequences but it forms part of a process of constitutionalisation in the EU that began in the 1960s when the European Court of Justice (ECJ) in a number of landmark judgements began to constitutionalise international treaties. The process approach adopted in this paper was designed through a chronological analysis to uncover important insights about how the European Constitution was crafted. The agreement on the constitution must be seen against the backdrop of the contentious Nice negotiations, the fault-lines o the Iraq war, and the increase in the scale of the Union. It must also be seen against the backdrop of deep divergence among the member states concerning their preferences for political order in the Union. How and why did the EU find the capacity to engage in one further process of constitutionalisation at this juncture? The answer to the ‘why’ question lies in the experience of the member states with the iterative process of treaty change that was launched in the mid 1980s. The process was characterised by an iterative series of IGCs that ended with ‘left overs’. The Nice IGC, characterised by a limited agenda, proved difficult to conclude and left many of the participants with the sense that the IGC method on its own had run its course. Even during the Nice IGC, the launch of the ‘Future of Europe’ debate by Fischer highlighted that there was a desire to stabilise the EU system by blending all of the existing treaties into a more coherent framework. Even though the final text did not accord with the Fischer model, his intervention created momentum, on the one hand, and put the idea of a constitution firmly on the agenda, on the other. This was followed by the Belgian presidency with its emphasis on a broad agenda and the Convention as a method. It is noteworthy that it was actors from two ‘integrationist’ member states committed to supranationalism who launched this phase of constitutionalisation. These initiatives would not have been promoted by a UK presidency, for example. This underlines the importance of ‘integrationist’ actors and not just supranational institutions in deepening the system. This is particularly important in the process of constitutionalisation because the Commission and EP are not key players in the negotiations. They can influence the process on some issues but are not drivers of the process. Once the idea of a constitution was launched and a broad agenda established, the Convention introduced a novel element to the process of treaty change. It was not a entirely new concept given the Convention experience of drafting a Charter

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but it was novel as a part of treaty change. It widened the range of actors beyond domestic governments to include parliamentarians both from the EU and national levels and gave the Commission direct representation. It was also inclusive of the candidate states and attempted to engage with civil society groups. Hence it was an important opening of the constitutionalisation process to non-state actors. It allowed for the emergence of different groups, parliamentarians, party families, and government representatives. Its working method involved deliberative fora, the committees, the plenary as sounding board, and the presidium as hierarchy. Within the forum, the team surrounding the President, the Vice Presidents and the Secretary General were particularly powerful. The dynamic and working methods of the Convention enabled it to reach agreement on issues that had proved difficult in a classical IGC format. However, its text was revisited by the IGC on issues that remained sensitive for one or more member states. The IGC proper dealt with those issues identified by the member states as contentious or sensitive. In other words, those aspects of the convention text that one or more member state could not live with. The degree of sensitivity and the intensity of preference mattered to the number of issues that remained on the agenda. No member state was entirely happy with the Convention text but size mattered. Small states in EU negotiations tend to limit their focus to a limited number of issues that are identified as critical. In this way, they influence the issues of direct relevance to them without finding themselves in a deal breaking situation. The character of negotiations in an IGC is an admixture of bargaining and arguing but within a system that it pre-disposed to reaching agreement and hence solving problems. The logic of bargaining implies maximising and optimising interests and preferences on the basis of strategic action (Risse 2002, 600). The logic of arguing implies that ‘participants in a discourse are open to be persuaded by the better argument and that relationships of power and social hierarchies recede in the background’ (Risse 2002, 602). According to this perspective, ‘the goal is not to attain one’s fixed preferences but to seek a reasoned consensus’ (Risse 2002, 602). What was the balance between arguing and bargaining in the IGC? The presidency is a EU institution designed to manage the process of negotiation and promote agreement. Although originally created for an instrumental purpose, chairing meetings, the presidency has assumed a central role in facilitating and managing the process. The role of the presidency is not to split the difference among the member states but to seek a solution that will allow for a reasoned or reasonable consensus to emerge.5 This involves developing a deep understan5

One presidency official described this as ‘thinking harder and deeper than many of the participants’ about the issues.

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ding of the issues and presenting those issues in an intellectually coherent and balanced manner. It involves taking individual member states through the issues and getting them to re-think their claims and preferences. Given the inbuilt bias in the system towards agreement, states are prepared to shift their preferences. Argument played an important role in solving the QMV issue as it was generally acknowledged the Nice agreement was overly generous to Spain and hence to Poland. The logic in the discussion on moving issues from unanimity to QMV between the UK, on the one hand, and France and Germany, on the other was characterised more by tough bargaining. The UK was not open to persuasion or to testing its claims on those issues it identified as red lines. Faced with this, France and Germany did not fight it to the end. They have, however, the possibility of using pasarelle clauses in future. The formal process of constitutionalisation in the EU rests on agreed treaty text. The European constitution both codifies and goes beyond the existing constitutional acquis in the Union. Four important insights emerge from this paper about the constitutionalisation process. First, those states that favour integration and a deepening of the process are the key actors in promoting ideas for change and setting the agenda for change. They are significantly more important than supranational institutions. Second, the EU continues to innovate and experiment with process. Third, the EU represents a densely institutionalised negotiation arena with robust capacity. The Convention and IGC were fuelled by a multiplicity of formal and informal meetings in different configurations. Fourth, the admixture of arguing and bargaining that characterises the EU represents a form of ‘integrative bargaining’ geared towards common problem solving (Young 1994). There are structural and features inherent the Union that facilitate ‘integrative bargaining’ but it is also facilitated by the pre-disposition in the system towards reaching agreement.

8. Conclusions This chapter traces the evolution of the debate on a constitution for Europe from its framing period in 2000 to agreement on a Constitutional Treaty in June 2004. The framing and agenda setting period consisted of the initial debate on Europe’s future animated by Fischer’s Humboldt speech of May 2000 that culminated in the Laeken Decelaration which established a broad agenda for reform of the Union’s constitutional architecture and the process of reform. The Laeken declaration was a wish list of issues that needed to be addressed by the EU. The 50 questions covered an array of issues that formed the political agenda. The Belgian

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Prime Minister, Guy Verhofstadt used the Belgian Presidency to add impetus to the constitutional debate in the Union but he did not in a manner that even the most reluctant member states did not resist. Embedding the IGC in a Convention process was the second major success for the Belgian Presidency. By altering the nature of the exercise and the actors involved, a new process of treaty reform was launched. The Convention brought the process of treaty reform out of the diplomatic arena into a political one. Significantly the candidate states were give access to the process. The successful conclusion of the Convention and agreement on a text establishing a constitutional treaty for Europe meant that the subsequent IGC had the limited role of transforming the Convention text into an agreed document by all member states. In the IGC, the Governments took over the final grafting of the next. The Italian presidency proved unable to get agreement so that it was left to the Irish Presidency in the first half of 2004 to bring the negotiations to a successful conclusion. The Presidency adopted a phased approach to its work as it was unwilling to formally re-open the IGC unless there were clear signs that agreement would be reach. The agreed text was not an ‘Accidental Constitution’ (Norman 2003).

9. References Craig P. (2003), What Constitution Does Europe Need? The House that Giscard Built: Constitutional Rooms with a view, London, http://www.fedtrust.co.uk/default.asp?groupid=2; 2005-09-13. Falkner G., 2002, ‘European treaty reform as a three level process’, European Journal of Public Policy, 9/1, 1-11. Fischer J., From Confederacy to Federation-Thoughts on the finality of European integration, Address to the Humboldt University Berlin, http://www.auswaertiges-amt.de/www/en/ ausgabe_archiv?archiv_id=1027, 2005-12-09. Grimm D. (1995), ‘Does Europe Need a Constitution?’ European Law Journal, 1/1995, 282. Habermas J. (2001), ‘Why Europe Needs a Constitution’, New Left Review, 11, 5. Jospin L., (2001), European Vision Speech, http://news.bbc.co.uk/1/hi/world/monitoring/ media_reports/1355981.stm, 2005-12-09. Kohler Koch B. (2000), ‘Framing: the bottleneck of constructing legitimate institutions’, European Journal of Public Policy, 7/4, 513-31. Magnette P./ Nicolaidis, K.(2004), ‘The European Convention: bargaining in the Shadow of Rhetoric’, West European Politics, 27/3, 381-404. Monnet J. (1978), Memoirs, London. Neunrither K. and Weiner A. (eds.) (2000), European Integration after Amsterdam, Oxford: Oxford University Press. Norman P. (2003), The Accidental Constitution: The Story of the European Convention, Brussels.

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Risse, T. (2002), ‘Constructivism and International Institutions: Toward Conversions across Paradigms’, in Katznelson I./ Milner H.V. (eds.), Political Science: State of the Discipline, New York, 597-629. Walker N. (2003), After the Constitutional Moment, London: Federal Trust, online paper 32/03 http:/ /www.fedtrust.co.uk/default.asp?groupid=2; 2005-09-13. Young O. (1994), International Governance: Protecting the Environment in a Stateless Society, Ithaca, NY.

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The Convention Method: An Institutional Device for Consensus-building11 Florian Oberhuber2

1. Introduction The ‘Convention on the Future of Europe’ assembled 105 full members and 102 alternates as well as observers and a plethora of external actors from think tanks, NGOs or business lobbies. Its task was Herculean: “to consider key issues arising for the Union’s future development”, and at the same time to “pave the way for the next Intergovernmental Conference as broadly and openly as possible” (Laeken Declaration, 25). In terms of cleavages, arguably, it was more complex than any prior institution charged with preparing treaty change, since it included not only government representatives from member states, accession countries and prospective members, but also representatives of national parliaments, the European Parliament and the Commission. This paper addresses a basic question: how can we understand the relative success of the Convention? What were those characteristics of the Convention’s proceedings that finally made it possible to reach ‘consensus’ on a single text entitled ‘draft treaty establishing a Constitution for Europe’? What were the conditions and mechanisms that allowed for dealing with the hitherto most broadly formulated mandate for treaty change? Before we start, it is useful to once again recall the contingency that marked 1

2

This article was finished in May 2005 and does not address the political dynamics after the Convention. Previous versions were presented at the conference “Social dynamics, political institutions and identifications in the process of EU Enlargement” (Passau, June 2003) of the section “Political Sociology” of the German Sociological Association, and at the conference “Representation and Constitution” (Vienna, December 2004) of the Austrian Political Science Association. Insights gathered from those discussions have greatly benefited this article. I also would like to thank Michal Krzyzanowski and Bruno Scholl for their comments, as well as the participants of an expert workshop for our research project (Vienna, November 2003), Christoph Bärenreuter, Irène Bellier, Ulrich Haltern, Paul Jones, James Kaye, Johannes Pollak, Heinz Schönbauer, Peter Slominski, Alexander Somek, and Gilbert Weiss. Special thanks are due to Ruth Wodak, our project co-ordinator, and the Austrian National Bank’s Anniversary Fund for the Promotion of Scientific Research and Teaching (project no. 10.222). University of Vienna, [email protected].

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the prehistory and early works of the Convention. Firstly, within the populations, a “very broad spectrum of opinion exists between Eurosceptics and Eurofederalists” concerning both empirical and normative considerations on the ‘future of Europe’ (Bellamy/Schönlau 2004, 74). ‘Constitutional debates’ in academia and the public revealed fundamental disagreements about the nature, finality and legitimacy of the European polity (Peters 2001, 69; cf. Wiener 2004, Weiss 2002; Wessels 2003, Jachtenfuchs 2002).3 But also the ‘masters of the treaties’ themselves, i.e. the heads of state or government, were divided by various cleavages as the process leading from Maastricht via Amsterdam to Nice clearly showed. The same holds true for the negotiations immediately preceding the decision to establish a Convention at the council meeting of Laeken in December 2001. As Paul Magnette (2002, 5-8; cf. Magnette 2004) pointed out, the rationale of a Convention was perceived quite differently by the various actors involved. While the Belgian presidency, the Commission or the European Parliament pushed the idea for its ‘progressive’ appeal, several member states did not expect the integrationist dynamic this body would eventually take. The British position is especially interesting in this context. As Magnette argues, Whitehall thought a Convention would be an opportunity to more substantially change the Union along intergovernmental lines by, for instance, strengthening the powers of the Council. The wording of the Laeken declaration might support this claim, since options like a re-nationalisation of certain competencies were explicitly included. Such competing visions still characterised the early deliberations of the Convention. The Laeken Declaration provided only a rather general analysis of the status quo of the EU and listed some 56 questions the Convention might address. However, should it deal with all of these questions, or only with some of them? Should it come up with several options, or should it try to reach consensus on concrete recommendations? And what should the nature of its final document be? In his speech in the inaugural session, Valéry Giscard d’Estaing tried to pre-empt the Convention on those questions when he called for reaching consensus on one single ‘constitutional treaty for Europe’ (VGE 2002, 11).4 However, how should this goal be achieved given the very heterogeneity of the Convention, the complexity of the subject-matter and the limited timeframe? 3

4

As Joseph Weiler (1999: 8) has put it: “[We have] a constitutional legal order the constitutional theory of which has not been worked out, its long-term, transcendent values not sufficiently elaborated, its ontological elements misunderstood, its social rootedness and legitimacy highly contingent.” This announcement by Giscard definitely came as a surprise. It can also be noted in this context that Sir John Kerr favoured not a merger of the treaties and a single legal personality but a short constitutional text that would not touch the existing treaties (cf. Sec-2; for information on the coding of interviews see footnote 7).

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1.1 Institutions: Opening up the ‘Black Box’ This article proposes a perspective on the said questions which is based on a detailed empirical analysis of the Convention as a complex social and discursive process. Hence, we will not presuppose any (rational-choice, or other) theoretical model which necessarily abstracts from so many aspects of the Convention’s reality in order to explain the outcomes from a limited set of variables. While the advantages of modelling and explanation are thus given up, other aspects of the Convention are brought to the fore which are, we think, interesting in their own right since they reveal the socio-cultural dimensions of politics in supranational settings: the formative effect of the institutional milieu, the ‘microphysics’ of power and practices of reducing contingency, the fluidity of actors’ identities and preferences, the backstage and off-the-scene arenas, the dynamics of socialisation and acculturation, etc. To put it simply, our approach favours the process over the output, the doing and speaking over the final text. This does not imply, we hope, that the hard facts are ignored for chasing the elusive: for is it not the bustling activity of networking, lobbying and building compromises that made up the tangible reality of the Convention, while ‘interests’ or ‘deliberation’ are abstract notions which carry a heavy theoretical baggage? Negotiators know very well that, before coming to seal a pact, one has to just keep talking in order to produce the sort of tacit understanding which is based on ‘soft’ factors like a favourable social atmosphere, a shared language and shared meanings. And indeed, such soft factors of engrenage have not remained unnoticed by integration theorists (cf. Shore 2000, 147-153). With respect to recent academic discourse, our research interest echoes literature on ‘social construction’ in international relations which has yet again focussed on such issues like socialisation and identity formation in institutional milieus (cf. Johnston 2001), and which, in recent years, has also been taken up5 in European Studies (for a literature review cf. Jupille/Caporaso/Checkel 2003; Checkel 2004). With said literature, this paper shares an interest in opening up the ‘black box’ of institutions and negotiations and focussing on the micro-level dynamics of social interaction and their institutional environments. As Jeffrey Checkel (1999, 545) argued, such processes, since they address fundamental

5

In 1999, in a special issue of the European Journal of Public Policy, Thomas Christiansen, Knud Erik Jorgensen and Antje Wiener have pointed out that “many assumptions derived from constructivism are already contained in a number of important contributions to European integration research”. (ibid.: 544)

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issues of agent identity and interests, “are not adequately captured by strategic exchange or other models adhering to strict forms of methodological individualism”. Consequently, scholars draw on various conceptual tools from sociology or cultural studies which allow the inclusion in their analyses of “the ways in which preferences, beliefs and desires are shaped by participation in the decision-making process itself” (Kerremanns 1996, 221). In the following sections, an account of the Convention will be presented according to three analytical axes: ● The ‘hardware’: this section proposes to look at the institutional set-up and working procedures of the Convention from the point of view of power in order to understand how the original heterogeneity of voices was transformed, contingency was reduced and the elements of the final ‘draft treaty’ were gradually put together. ● The ‘software’: in this section we will highlight the semiotic and cultural dimensions of the Convention method, i.e. the establishment of a common cognitive framework and a shared language in certain subgroups of the Convention which arguably were a necessary condition for successful consensus-building. ● The process: While the preceding sections focus on the (institutional, cultural) preconditions of consensus-building, this chapter addresses the social dynamics of the Convention in terms of a process of gradually ‘narrowing’ expectations, language and opinions and thus establishing what we will call the Convention’s mainstream. Taken together, those three dimensions provide a structural account of the Convention as a peculiar method for reducing contingency in a supranational setting. We could also speak of a ‘technical device’ characterised by a certain inner logic or ‘systemic’ rationality, in a way similar to how Max Weber has described bureaucracy.6 However, as will be pointed out in our conclusions, the Convention method had its limits, and namely intergovernmental bargaining had a decisive influence on its outcome and proceedings. Lastly, despite our emphasis on structures it shall be noted that the Convention indeed assembled strong personalities

6

Analysing the problem-solving strategies practised by the EU administration, Maurizio Bach (1999) identified elements such as the break-up of complex matters into a number of manageable packages, or the creation of time pressure by defining timetables and deliverables. In a similar way, Martin Heidenreich (2003) looked at enlargement as a process involving the transformation of major political conflict into a complexity of issues to be dealt with by a network of experts and policy-makers over a longer period of time.

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who clearly made their mark on its outcomes (cf. Norman 2003; Lamassoure 2004 for actor-centered accounts).

2. A Note on Methods: Fieldwork and Data Based on previous experiences of ethnographic research in European Union institutions (cf. Muntigl, Weiss, Wodak 2000; Wodak 2000, 2004), we used a triangulated approach which drew on a multiplicity of sources and methodological resources. As summarised in figure 1, five periods of fieldwork were undertaken in the course of the project. The first one, in September 2002, mainly served explorative purposes, as well as the testing of our guidelines for semi-structured interviews (cf. Krzyzanowski 2005). On this basis, all in all 41 interviews7 with Convention members and staff from the three main EU institutions were conducted and recorded at the site of the European Convention in November and December 2002, May 2003 and January 2004. Throughout those fieldwork periods, the research team could freely move in the buildings of the European Parliament hosting the Convention, use the office rooms of one of the Austrian Convention members, and also draw on frequent personal communication with some of the staff and assistants. Furthermore, we observed several plenary meetings as well as two Working Group sessions, which took place in the Justus Lipsius building of the EU Council of Ministers. Finally, in January 2004, well after the conclusion of the Convention’s works, we conducted another five interviews with ‘drafters’ from the Convention Secretariat and with the deputy secretary-general. The interviews and ethnographic observations were complemented by the following additional, secondary sources: ● Videotapes of plenary sessions available from the Audiovisual Division of the European Parliament ● Verbatim protocols of the plenary sessions (http://www.europarl.eu.int/ europe2004/index_en.htm) ● Documents from the Convention’s website, the ‘Forum’ and the ‘Futurum’ websites ● Non-papers and informal communication with Convention members and staff ● Published speeches and interviews with Convention members

7

Interviews are coded in the following way: ‘Sec’ for members of the Convention Secretariat, ‘Ass’ for assistants, ‘FM’ or ‘MM’ for female or male Convention members, and ‘FA’ or ‘MA’ for female or male alternates.

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Convention starts Listening Phase

2/2002

Convention ends Study Phase

7/2002

Proposal Phase

2/2003

7/2003

Fieldwork dates - 9-15 September 2002: Observations plenary meetings and interviews - 11-17 November 2002: Observations Working Group meetings and interviews - 1-7 December 2002: Observations plenary meetings and interviews - 25-31 May 2003: Observations Plenary meetings and interviews - 26-30 January 2004: Interviews with Secretariat members Figure 1: Fieldwork at the European Convention

3. From ‘Listening’ to ‘Consensus’: Elements of the Convention Method 3.1 The hardware It has been mentioned above how, in the inaugural session of the Convention, Giscard successfully secured the power of definition with respect to the interpretation of the Convention’s mandate, i.e. to reach consensus on one single ‘constitutional treaty for Europe’. The preconditions of this authoritative act8 are to be found in the Convention’s ‘hardware’, namely the powers of the Praesidium and the President envisaged in the Laeken declaration and laid down in the Convention’s working procedures. As regards the plenary sessions, the Praesidium largely determined the agenda, and the chairmen, with opening and closing each session and identifying those points where there was ‘consensus’, were able to frame its discourse. The same holds true for the working groups too. Their mandates and working arrangements were determined by the Praesidium (cf. CONV 9/02, Art. 15), and each of them was chaired by one of the Praesidium members assisted by the Secretariat. Moreover, the Praesidium was in

8

Another key moment was when the so-called ‘Skeleton’ was put forward by Giscard on October 28, 2002, without consulting either the Convention plenary or the Praesidium.

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no way bound by the results of the working group, and the latter were explicitly advised not to draft any articles.9

EXTERNAL ACTORS: Forum, Youth Convention, national debates etc.

SECRETARIAT

assignments

(both chaired by Presidium members)

WG REPORTS

WORKING GROUPS + discussion circles

PRESIDIUM

notes / reports / drafts

statements / conclusions

contributions / amendment s

reports

- components - political families - intergroups (...)

MEMBERS + alternates + (observers)

speeches / interventions

PLENARY SESSSIONS

Figure 2

As many commentators observed, Giscard used such powers extensively for steering the Convention process:10 he deliberately introduced a lengthy ‘listening phase’ dealing with rather general issues,11 while it was actually the Secretariat that gradually established what Jean-Luc Dehaene once baptised the Convention 9

Moreover, the Praesidium met more often then the Convention plenary (on 56 days), especially from October 2002, when the Convention’s “serious business” started. “In the final weeks, meetings became open ended and some of them lasted into the early hours.” (Stuart 2003: 21) 10 This gave rise to several conflicts between the Presidium and ‘the floor’, i.e. concerning the drafting of the working procedures and the establishment of working groups. Notably, MEPs were the most prominent protagonists in such conflicts, and they were the only group which was able to successfully organise alliances countering proposals by the Praesidium / President. 11 The questions that the plenary addressed in the first few sessions were: “What do you expect from the European Union?” (21 and 22 March), “The missions of the European Union“ (15 and 16 April), “The European Union carrying out its missions: efficiency and legitimacy” (23 and 24 May).

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acquis (cf. Shaw 2003, 12); he was reluctant to set up working groups, and, when finally doing so, they would deal with rather marginal12 issues; finally, he avoided debates on the institutional chapter until the very end of the Convention, while he himself consulted with external actors from the very beginning. Thus, Giscard was rather successful in staying on top of the Convention at large and even of the Praesidium, i.e. to control its agenda and to define which issues to deal with and which options to consider. Figure 2 illustrates the institutional basis of this superior power position, namely the special relationship between the president(s) and the Secretariat, as well as their central location within the Convention’s communicative set-up.

3.2 The Convention: Institutional and Communicative Set-up With only a few exceptions, the Secretariat was successful in securing the crucial monopoly of drafting texts, while Giscard and the Praesidium occupied powerful gate-keeping positions: each draft or report produced by the Secretariat was based on an assignment by the president(s), which was then transformed into a concrete task for a team of ‘drafters’ by John Kerr or his deputy Annalisa Giannella. Once finished, the text would then, via the hands of the same two persons, go back to the president(s), who could do with it whatever they wanted: change it, have it redone, or forward it to the Praesidium which would then have a chance to amend it13 and decide whether it should be presented to the Convention or not. Thus, in the small groups of the Secretariat and the Praesidium the most important lines of communication converged and were transformed: formal and informal contributions and amendments came in; reports, drafts and organisational notes went out (cf. Krzyzanowski 2005). At the level of content, analysing the documentary work of the Secretariat “is perhaps the most illuminating exercise in excavating the emergence of the Convention’s acquis” (Shaw 2003, 12). A glimpse at the type of documents the Secretariat produced during the first months of the Convention’s works14 nicely illustrates this thesis: 12 For instance, the Working Group on competencies was only mandated to deal with one element of the problem, namely “complementary competencies”. In the end, it was the Presidium itself that would work out a solution for the whole issue. 13 According to Deloche (2004: 50-52), the Praesidium sometimes modified Secretariat papers to a great degree, especially when important political issues were concerned (e.g. the question of competencies). However, Giscard enjoyed the privileged position of putting proposals at the table, while any changes had to be justified by well-grounded arguments in the Praesidium.

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●

questions to be addressed in the plenary (e.g. CONV 16/02) and to be reflected by Convention members (e.g. CONV 70/02) ● summaries from the debates in each plenary session, including indications of further need for reflection (e.g. CONV 14/02) ● documents explaining the current legal situation and identifying paths or questions to explore (e.g. CONV 69/02); these documents prepared the ground for the later working groups in respective areas ● reports on the discussions and/or requests from external actors like the ‘national debates’, the Forum, the Youth Convention; in each of these cases, the Secretariat enjoyed considerable leeway when producing its ‘digest’ papers ● finally, the ‘mandates’ and final reports of the Working Groups were drafted by the Secretariat too. Arguably, through such summative and documentary work,15 the Secretariat not only defined the problems and questions the Convention should deal with but it also framed debates by giving background information on the legal status quo and identifying and evaluating options for further consideration. At the heart of this crucial work of reducing complexity was the principle of incrementalism, i.e. to build a bridge from the old (the current legal system and previous debates on reform) to the new (the works of the Convention). It is informative in this respect that Giuliano Amato, vice-president of the Convention, emphasised already in the inaugural session that Conventioneers should not start from scratch or from abstract principles, but that they should build on the existing treaties and draw on previous propositions for reform put forward by think tanks,16 earlier summits17 or the European Parliament’s Constitutional Affairs Committee. Such incrementalist strategy, indeed, is not peculiar to the Convention only, but it has been con-

14 Later, the same kind of work was performed during the ‘study phase’ for each of the working groups. 15 According to Deloche-Gaudez (2004: 56), the Secretariat had considerable autonomy when drafting the first notes of reflection. 16 Already in 1996, the European University Institute, Florence, developed “A Unified and Simplified Model of the European Community Treaties and the Treaty on European Union in Just One Treaty”. Three years later, another report in this spirit was commissioned by the European Parliament. In this case, continuities with the Convention’s work stretched out to the level of personnel: Hervé Bribosia, later on “drafter” for the Convention Secretariat, and vice-chairman Giuliano Amato had been leading figures in the EUI’s endeavour (Mény 2003: 1–2). 17 The Declaration No. 23 annexed to the Treaty of Nice already contained a number of key points of the Convention’s future mandate and proceedings, namely the issues of competencies, the status of the Charter of Fundamental Rights, the simplification of the treaties, and the role of national parliaments.

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sidered one of the key features of reducing contingency in supranational institutions. For Europe, as Michael Shackleton18 has put it, is the process itself, not the goal; it is never reaching clear solutions, but “going from one complexity to another”, always reforming the status quo (cf. Abélès 2000b). As a second key principle of the Secretariat’s work, selectiveness shall be highlighted. This was a default option given the mass of information the 15 ‘drafters’ had to process (for the following figures cf. CONV 851/03): more than 1.800 interventions were made by Conventioneers in the 52 days of plenary sessions; 864 official and numbered documents were produced and published on the website, about 40 per cent of which were ‘contributions’ by Convention members, 30 per cent were ‘speeches’ and another 30 per cent were ‘documents’ produced by the Secretariat; to this figure add the 773 documents of the working groups and discussion circles, as well as the more than 6.000 amendments to the Praesidium’s draft articles. The Convention’s civil society ‘Forum’ (on the Internet) counts (by the end of the Convention) nearly 2.000 contributions from individuals and organisations from academe, think-tanks, politics, business, NGOs etc. Another 262 documents (published on the ‘Futurum’ website) came from ‘Governments and National Debates’, and about 300 contributions were made by the EU institutions. Finally, ‘non-papers’ and preparatory documents for the various caucuses and intergroups of the Convention need to be mentioned. Vis-à-vis such a vast spectrum of voices and actors, the Secretariat held the crucial position of a clearing house and a gatekeeper (with its power of not proposing/mentioning something). Moreover, the complexity of the subject-matter and the increasing time pressure further increased the strategic advantage of the small cohesive group of the Secretariat. The most impressive example for this power-position is probably the handling of amendments and revising articles: with some six thousand amendments to pre-group and analyse, the Secretariat enjoyed considerable leeway with respect to which of them to take into account when revising articles. Convention members, on the other hand, had to turn in amendments and reactions to each fresh tranche of draft articles on very short deadlines (Shaw 2003, 14-16; Deloche-Gaudez 2004, 57-60).

3.3 The Software Power was not the only variable facilitating consensus-building in the Convention. In order to be able to ‘lead the way’, at first common ground had to be es18 Personal communication.

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tablished among the ‘leaders’ themselves. Staying with the Secretariat, this aspect can be highlighted when turning from an organisational to an anthropological perspective which brings soft factors like socio-cultural common bounds, shared language and shared meanings to the fore. In semiotic terms, within the Convention’s ‘semiosphere’ a relation of centre and periphery can be identified:19 while the Convention at large was very heterogeneous in terms of national and institutional backgrounds and characterised by a wide range of competing voices and no stable structures, the Secretariat on the other hand was able to develop a refined, structurally organised and coherent account of the Convention’s rationale, the various issues to be debated and the options to consider. By the same token, the remarkable success of the small but cohesive MEP delegation in the Convention can be explained.

3.3.1 Building Common Ground in the Convention Secretariat The Secretariat staff was picked by Giscard and his secretary general, Sir John Kerr, from a pre-selected list of officials from the three main EU-institutions as well as from member states’ diplomatic services. Of course, none of the so-called ‘drafters’ was a stranger to the European Union. Most of them had worked for one or more of the EU institutions (including the European Court of Justice) before, where they had often been concerned with legal or ‘constitutional’ issues, or at least they had been involved with EU affairs in their home countries. Nevertheless, as our interviewees from the Convention Secretariat affirmed, the group of drafters in the beginning was marked by tensions – between the different sending institutions, between different nationalities and characters – and mutual trust was still lacking. However, this changed rather quickly: the Secretariat had meetings at least once and up to three times a week where every single text, which was pre-drafted by a team of two, would be discussed in the group at large; this intensive collective discussion process sometimes continued over a period of 19 We adopt the notions of centre and periphery from the semiotician Yuri Lotman (1990: 128) who argued that the “highest form and final act of a semiotic system’s structural organization is when it describes itself. This is the stage when grammars are written, customs and laws codified. ... Whether we have in mind language, politics or culture, the mechanism is the same: one part of the semiosphere (as a rule one which is part of its nuclear structure) in the process of selfdescription creates its own grammar ... Then it strives to extend these norms over the whole semiosphere. A partial grammar of one cultural dialect becomes the metalanguage of description of culture as such.” Essentially, Niklas Luhmann says the same in the framework of the language of Spencer Brown’s ‘Laws of Form’ and cybernetics.

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several days. “It was a fight, because of course we had different institutional opinions, we had different political opinions”, but in the end, an effective and integrated team was built, a “real driving force” of the Convention (Sec-1) (cf. Deloche-Gaudez 2004, 62-64). To be sure, different standpoints and opinions did not disappear; however, mistrust and antagonism were transformed into a spirit of trust and co-operation thus laying the basis for creating common ground, i.e. for what has been referred to in communication studies as “discursive interculture” (Koole/Thije 1994). Studying how advisers in the EP, despite their different national and political backgrounds, were able to share meaning and compose common texts, Eugène Loos (2004, 19– 20) recently emphasised the significance of frequent interactions in a stable organisational environment which allow actors to create context for each other. They get to know each other well, while they share similar interests. In sociolinguistic terms, they could be considered a “speech community”, characterised by a “shared language”.20 Thus, Christiansen et al. (1999, 541) have underlined the role of Eurospeak – “the purpose-built vocabulary of terms to describe (and shape) the reality of the EU” – for constructing a distinct EU elite and giving meaning and direction to the integration process (cf. Diez 1999).21 In the Convention Secretariat, over time, institutional antagonisms and differences of terminology were overcome, and drafters were able to create coherent legal texts. A common cognitive framework was established, a shared understanding of the EU’s functioning and of what ‘progress’ means in terms of treaty revision. Consequently, when building the Convention acquis and reading contributions from Convention members, the drafters would be able to agree on what constitutes a valuable input and what can be ignored;22 by the same token, they were able to process more than six thousand amendments to the draft treaty. It does not come as a surprise, therefore, that one of our interviewees argued that the most pervasive cleavage within the Secretariat was not a matter of ‘direction’, but of ‘speed’ of integration, some preferring to go faster than others.23 20 Gumperz (1968: 219) characterised a speech community as “any human aggregate characterized by regular and frequent interactions by means of a shared body of verbal signs and set off from similar aggregates by significant difference in language usage.” Administrative codes or trade languages are used as examples of “shared language”. (Concerning these concepts, we are indebted to Petr Drulàk (2003) who used them in a lecture at the EUI, Florence) 21 The socialising effects and construction of functional identities in the course of working for the EU institutions has frequently been pointed out (cf. Wodak 2004). 22 Sec-2: And since it was a lot said, it was EASY for the Secretariat to pick and choose what was interes what they thought would be the right THING. And the right thing was to make something REASONable which would be accepted by most.

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‘Consensus’ in the Secretariat, as such examples demonstrate, was rather flexible: it integrated competing views on the right ‘speed’ of integration as well as various institutional interests. From a semiotic perspective, one could speak of a metalanguage made up by abstract terms like ‘integration’, ‘simplification’, ‘transparency’, ‘efficiency’, bringing the Union ‘closer to its citizens’, etc. While such notions are open to competing interpretations and do not prescribe exact solutions to concrete problems, they provide a general cognitive and linguistic framework which implies a strong normative perspective on a wide range of issues and thus reduces complexity by placing certain proposals at the centre while marginalising others. The latter would clearly pertain to proposals challenging the institutional status-quo24 (e.g. proposing new institutions) or advocating grand ‘alternative’ visions25 (and thus jeopardising the delicate compromise between the intergovernmental and the supranational elements). Furthermore, it turned out that those issues which involved political rather than legal-technical decisions (e.g. the working groups on economic governance or on ‘Social Europe’) were dealt with less successfully in the Convention. Finally, concerns which were explicitly ‘nationally coded’ were extremely difficult to bring to bear. An example is provided in an interview with Joachim Würmeling, a German MEP, who mentions the issue of an exact catalogue of competencies, which was advocated by representatives of the German Länder with a view to foreclosing further ‘centralisation’ of the EU. Explaining the reasons why their efforts failed, Würmeling points to the very ‘German’ character of such a proposal,26 which did not fit well with the denationalised discourse of the Secretariat.27

23 Sec-2: I think there was another cleavage at the more bureaucratic level, at the Secretariat, between what you could call the conservatives and the progressivists. Some were there to keep things under control, and to do away the least possible from the present system. 24 As far as the ‘institutional balance‘ and the simplification of instruments and procedures is conconcerned, the Secretariat, bringing together personnel from the big ‘stakeholders’ with respect to treaty revision, turned out to be rather conservative. Thus, as Wessels (2003: 289) has shown, the complexity of procedures in the EU has only been reduced to a minor degree. 25 Most prominently, in the plenary session of May 30, 2003, five Convention members and four alternate members delivered their “minority report” to president Giscard d’Estaing and called for “another way” for the EU (CONV 773/03). 26 MA-7: the constellation was such that the said thinking of a literal division of competencies in such treaty uhm it is obviously a very German thinking yes and we practically had support from nobody [ah aber da war die konstellation soeben (! 6:24) so dass dieses mmm (..) diese mmmm diese diese denke der der buchstäblichen abgrenzung der kompetenzen an solchen vertrag uhm die das ist halt offenbar ein sehr eh deutsches Denken ja und wir haben ja praktisch von niemand (…) Unterstützung gehabt] (155-161).

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3.3.2 The Success of the EP Delegation Going back to the Convention at large, the characteristics of the team of drafters described above can be used as a model for understanding why within the Convention another sub-group, namely the EP delegation, was able to play a decisive role. Only 16 out of 105 Convention members had been nominated by the EP (and one of them, the ‘Euro-realist’ MEP Jens-Peter Bonde, lead the minority of nine Convention members and alternates opposing the final ‘consensus’). Nevertheless, as many of our interviewees as well as academic observers noted, the MEP delegation was the most effective of the Convention’s components (e.g. Duff 2003; Beach 2003; Maurer 2003, 2004).28 Other than the national parliamentarians, MEPs knew each other from before the Convention and they shared common experiences and common institutional interests. They were used to act in a supranational environment and to build alliances and to draft proposals at the basis of pragmatic compromises (cf. Abélès 2000a, 314–316; Abélès 1992). Moreover, over a long period of dealing with the question of institutional reform, the EP had accumulated a consolidated stock of detailed and refined common positions which hardly changed during the Convention’s works.29 To the great surprise of most observers, many of the EP positions were soon beyond question as Convention mainstream, namely the EU’s legal personality, no re-nationalisation of competencies, the inclusion of the Charter of Fundamental Rights in the treaty and its mandatory character, the stronger communitarisation of the former third pillar (i.e. the abolition of the pillar structure). Moreover, some key positions of the EP delegation found growing support among Conventioneers, namely the extension of the co-decision procedure, the extension of QMV, and the extension of the EP’s powers in the institutional balance (e.g. the

27 Another example for peripheral ideas which did not easily fit into mainstream schemes is provided by proposals for an inclusion of provisions on national minorities in the draft treaty. As Joszef Szájer, representative for the Hungarian national parliament and main proponent of such an idea, acknowledged: we have been proposing most me and many other conventioneers not only Hungarians but we Hungarians have been proposing much of them (.) we haven’t seen much BACK in the final versions (MM-12: 48-50). 28 This has already been noted for the first Convention (Deloche-Gaudez 2002: 29-31). 29 Since 2000, the EP had issued several reports on the issues the Convention would later deal with (cf. Duff 2003: 3-4). For a summary see the 15-page document “Parliament’s Positions on the Preliminary Draft Constitutional Treaty” (PE 314.676) and the EP delegation’s website (http:// www.europarl.eu.int/comparl/conv/default.htm).

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right to elect the Commission President, an enhanced role in the budgetary procedure or the participation in CFSP).30 Towards the end of the Convention, the EP’s positions informed several efforts of coalition-building,31 and, during the endgame, they were at the basis of a close co-operation between the national parliamentarian and European parliamentarian components.32 This common parliamentarian position is represented, for instance, by the statements of Inigo Mendez de Vigo and Marietta Giannakou on behalf of both components in the plenary session from June 11, 2003. Both speakers called for an extension of QMV and co-decision, for a ‘lighter’ revision procedure, for strengthening the Commission and for giving the EP a greater role in the procedure of nominating the Commission President (cf. verbatim protocol, 3043 – 3-048). As we have attempted to demonstrate in a qualitative analysis of documents produced by, and interviews with, Conventioneers with an EP background (Krzyzanowski/Oberhuber forthcoming),33 such common positions reflected a more abstract but deeply rooted and emotionally charged conception of the nature of the European polity in terms of a certain vision of ‘progress’:34 achieving more integration (MM-3, MM-8, MA-4), extending the community method (FM-3, MA-4, MM-11), leaving behind yesterday’s sterile world of intergovernmentalism and the veto (MA-2, MA-7). In the very last week of the Convention’s work,

30 Furthermore: the creation of a legislative Council (Art. 23), the introduction of a ‘flexibility clause’ (Art. 17), the passerelle (Art. 24), a lighter revision procedure, elements of QMV in CFSP. 31 Cf. for instance the document “Key elements of Institutional Reform” (CONV 487/1/03 REV 1) signed by 22 members, or the document “Contribution to the work of the Convention” (CONV 596/03) signed by 12 members. 32 For instance, on June 11, one of the two MEP representatives in the Praesidium, Inigo Mendez de Vigo, could speak up for both, the MEPs and the national parliamentarians (cf. verbatim protocol of the session from 11/6/2003: 3-043 – 3-048). On the same day, the component of the latter, chaired by Marietta Giannakou, herself a former MEP, had left their meeting room for joining their colleagues from the EP to co-ordinate their positions. Joint proposals were made by MEPs and national parliamentarians which represented a strong will to reach ‘consensus’. 33 Six MEPs (FM-3, MA-2, MA-4, MA-7, MM-3, MM-7), one former MEP (MM-11), and one national parliamentarian who was already a member of the first Convention (MM-8). 34 For instance, such temporal conception of the European Union as well as the aforementioned centre-periphery relation is affirmed in the following passage from an interview with Alain Lamassoure, MEP: clearly the NEW members are in different mood (↓)(.) because the new members are NOT in the year two thousand and four (↑)(.) they still are in the fifties (↑) in their minds (↓) (MM-7: 179-181) A very similar argument is also put forward by Reinhard Rack (MA4: 206 pp.) as well as by Anne van Lancker (FM-3: 185 pp., 409 pp.).

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such a temporal notion35 of the EU and ‘progressivist’ self-understanding should especially inform persistent calls for the extension of QMV to a number of areas (e.g. CFSP, taxation), and for a lighter revision procedure.36 Even after the Convention had finished its works, members of the parliamentary groups reunited again and issued a joint declaration to the ongoing IGC in Brussels, which, among other things, stated: There must be no retreat from the Convention’s already modest proposals for its extension of QMV in the fields of tax, social security or criminal justice. The passerelle provisions, triggered by a unanimous decision of the European Council, as well as in enhanced cooperation, must be maintained as a key element of the evolutive nature of the Constitution.37 [emphasis added]

3.4 The Process (‘Mainstreaming’) While the preceding sections focussed on the institutional and semiotic ‘centres’ of the Convention, an account of the social process leading from ‘listening’ to ‘consensus’ has to get down to the messy details of its everyday business. It has to be recalled at this point that the Convention lacked any stable organising forums or cleavages and that alliances shifted very strongly from issue to issue. As Giscard emphasized at numerous occasions since his inaugural speech at the Convention (cf. Magnette 2002, 11-12), the structure and proceedings of this body were framed in such a way as to impede intergovernmental and other forms of bargaining and alliance-building. The absence of voting has to be recalled here, as well as the seating of Convention members in alphabetical order. Consensusbuilding should lead to a final result that everyone can live with. Thus, the structure of majority and opposition and the language-games familiar to national parliamentarians (presupposing ideologically defined political parties) did not apply to the Convention. On the contrary, to be successful it was considered paramount to avoid the formation of antagonistic camps rallying behind competing drafts. In the plenary sessions, this worked out rather well: Convention members usually acted and spoke as individuals; in a typical morning or afternoon, 50 and more 35 Petr Drulàk (2003) has identified such temporal notion in a survey of theoretical and political discourse on European integration. Drawing on the terminology of Lakoff and Johnson, he referred to the metaphor of “Europe as a flow” and claimed that this was the most deeply rooted, “sedimented” way of thinking about European integration among supranational elites. 36 Cf. the non-paper “Key Points” jointly prepared by the parliamentarian components for the Convention sessions of July 9-10. 37 “Joint Declaration addressed to the European Council by Parliamentary members of the European Convention, reunited in Brussels on Friday 5 December 2003”, http://europa.eu.int/futurum/documents/other/oth051203_en.pdf.

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of them would read often pre-written texts (for a maximum of three minutes) which hardly were related to statements by other speakers, and thus no aggregation of preferences took place.38 As one of our interviewees (MA-2, 127-129) put it, it is mainly “speaking for the records”, “it’s not at all an interacting debating chamber”. Given the complexity of the subject matter, the limited amount of time39 and the sheer number of Convention members, real debate could hardly be expected. Rather, a culture of exquisite politeness prevailed, making open confrontation clearly an exception (cf. MM-7, 170-171; MA-2, 102-111). Given this state of affairs, it does not come as a surprise that Convention business more and more moved to other (semi- or informal) forums. Already in the early phases, attempts to caucus were going on at every level: there were “regular meetings of each political group, social democrats, conservatives, and the liberals; each set of institutional representatives [was] trying to co-ordinate its line; and each country [had] meetings of its own nationals” (House of Lords 2002, 13).40 Moreover, several ‘intergroups’ were set up, pulling together for instance ‘eurosceptics’,41 ‘federalists’,42 MEPs and Commission representatives, the Benelux countries,43 the so-called 'friends of the Community method',44 and also key fig38 MM-10: speaking very frankly I had the expectation that we will act more (.) much more together than this was the fact I mean as a political families (↓)(.) I said yy my idea was political families have clear had clear lines (.) so le-le-let try to (.) to (.) to do that yyy (.) for example (.) I had also the idea to (.) when when in we were working in working groups (↑) I had the idea when for example we had the EPP meeting(↓) (.) then I said le-let let define let agree who should present our position on behalf of twenty or thirty people not to repeat thirty times the same ((laughs)) sentences now (.) and then somebody said you know Mister Peterle (↓) everybody has (.) his own face in this story ((laughs)) (102-109). 39 As Alain Lamassoure reminds in his book (2004, 71), the European Parliament needed 18 months to treat the subject of competencies only. The Convention plenary, on the other hand, had half a day for each working group report, and 15 sessions to deal with more than 6.000 amendments to the draft articles! 40 Concerning national alliances, Alain Lamassoure’s book (2004: 293-295, 377-384, 430-437) gives evidence of a close co-operation of French Conventioneers (Michel Barnier included) with representatives from the national government and domestic political parties. Poland had even set up a reflection group of ca. 35 experts and senior politicians to serve as a common ‘intellectual basis’ for her Conventioneers (MM-14: 159-173). 41 Pulled together by the Danish MEP Jens-Peter Bonde. 42 Alain Lamassoure was presiding an integrationist intergroup that met 15 times between April 2002 and June 2003, integrating a regular group of a dozen Conventioneers from different components and national backgrounds (Lamassoure 2004: 326-330). 43 Other governments, too, organised regular dinner meetings (Lamassoure 2004: 52). 44 This group had first met in April 2002 and comprised representatives of those small and medium sized member states which would counter the Franco-German proposal on institutions during the Convention's endgame (Magnette and Nicolaidis 2004b).

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ures from the Praesidium and the floor, ‘selected’ by the president(s) as crucial counterparts45 (Norman 2003, 52, 310; Lamassoure 2004, 52). According to their skills and energy devoted to the affair, Convention members were able to use such forums to push certain ideas, bring issues on the agenda or block initiatives coming from the Praesidium. Generally speaking, three basic conditions for successful action can be identified: (1) expertise46 in the subjectmatter concerned and thorough knowledge of the workings of the EU-system; (2) being backed by staff and resources (here, the Commission’s taskforce counting nearly as many heads as the Convention Secretariat stands out); (3) the ability to network and build alliances at the basis of pragmatic compromises, which in turn depended on social capital like good contacts with relevant Convention members and EU politicians, or a recognized position in a political family. In many of our interviews, the verbs used by interviewees mirror these types of activities, e.g.: look for allies, fight, collect signatures, get in contact with, jointly work out common texts, promote the idea, discuss a lot, put some pressure etc.47 As it turned out, this setting fostered a dynamic that would prove to be decisive for the Convention’s success: members with less social capital like those from accession countries or national parliamentarians48 found that, in order to be heard in the Convention, they had to adapt to the discourse and structures of relevance of the ‘centre’ (cf. Maurer 2004).49 Rallying around issues raised by the EP delega45 One interviewee (Ass-1: 52-53, 152-153) mentioned Elmar Brok, Andrew Duff, Jean-Luc Dehaene, Giuliano Amato and Klaus Hänsch among those “key players” who were, among other things, negotiating compromises with Giscard before the Presidium meetings. 46 MA-2: ... when I came to the convention I would focus on things which I had (2.0) I felt I have more experience of and therefore had better contribution ... (539-543). 47 As the example of the intergroup “European Constitution” reveals, the practice of consensusbuilding involved, for instance, regularly pulling together members from the different components of the Convention, establishing relations of trust between them, drafting and proposing common texts, collecting signatures, and finding external support and resources (Lamassoure 2004: 326-329). 48 For instance, Gisela Stuart affirms the difficulty for national parliamentarians to come up with common positions (FM-4: 215 pp.; cf. also MM-8: 599-606). In her Fabian Pamphlet (2003: 18) she writes: “National parliamentarians were numerically the largest group but, in terms of influence, they found it almost impossible to reach common views unless they supported what the European Parliament wanted ... Those who saw their political future in domestic politics were in the minority.” 49 This has already been noticed during the first Convention (Maurer 2003: 181). As far as the Convention on the Future of Europe is concerned, Maurer (2004) has lately presented some quantitative evidence showing that alliances cutting across countries were mainly formed by MEPs, and that members from accession countries were not able to develop their own proposals, but rather rallied around contributions put forward by others.

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tion, for instance, was a promising strategy for making one’s voice heard. However, this meant that only those concerns from the ‘more distant’ Convention members would eventually find their way into the draft treaty which were ‘compatible’ with the semiotic centre, i.e. the ‘mainstream’ approach (see the preceding section on the Secretariat) .50 At the same time, MEPs proved to be skilful in getting national parliamentarians on board, which was probably easier since quite a few of them, especially coming from accession countries, considered the EP as a potential future place of work. Let us illustrate with an example (from an interview with a British assistant to an MEP) of how the co-operation of national parliamentarians and European parliamentarians worked in practice: Ass-1: On the fifth of December last year [2002] we had a meeting of the national parliamentarians and the European parliamentarians who had been the members of the Convention and we produced a text and the text was hushed out on the Thursday evening by certain key players which involved Méndez [MEP] and Brok [MEP] and Dehaene [vice-president] and Hänsch [MEP], van der Linden [Dutch Senate] and few others that I forgot. And then the next morning, the same text was modified and subjected to the party political concourses; as a result at the end of the party political concourses there were a few amendments suggested by each of the party political groupings. These had been integrated in the text, gone to the plenary and adopted back. [...] That debate between the national parliamentarians and the European parliamentarians on what form of this text, it was very interesting of course, because they were able to in a more controlled and open environment to have free and open discussions about whether these things were acceptable or not – for a national parliamentarian point of view, for an European parliamentarian point of view and so on. So, the dynamics happened there and the decision how the text should be changed and to what extent it should, it really happened in the party-political concourses and not in the plenary. By the time it hit the plenary it was ok. So, it was a refinement of the procedures which we started to establish towards the end of the Convention. [quoted with minor adaptations to improve readability]

With respect to the ‘social infrastructure’ of such efforts to build alliances and to formulate common positions, political families were among the most important organising forums since they cut across both institutional (components) and national backgrounds, and they provided an atmosphere of trust where preference-formation could take place among friends and colleagues who shared the same persuasions (Ass-1, 186-188, 206-214; MM-12, 226 pp.; FM-3, 396 pp.; MA-7, 26-40). Thus, the EPP group, for instance, already entered the Convention with a basic compromise paper, and, in several party meetings, they produced further common texts.51 Yet again, the dominance of the EP delegation comes to the fore: two of the party-political groupings were lead by MEPs (An50 In a survey of the contributions to plenary sessions, Saskia Matl (2003) empirically demonstrated how topics and positions/opinions converged over time.

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drew Duff, Elmar Brok), while vice-president Giuliano Amato headed the socialist political family in the Convention (where MEPs like Klaus Hänsch or Anne van Lancker played leading roles). From the perspective of ‘peripheral’ Conventioneers, a common reaction to such dynamics was the positive identification with the ‘centre’. This was explicitly reflected in several of our interviews with members from accession countries. A Polish member, for instance, positively evaluated the growing assimilation of discourse in the Convention, everybody coming closer, speaking with similar voices, extreme positions disappearing and a “general culture of European debate” emerging (cf. FM-2).52 In this context, the initial decision of the representatives from accession countries was decisive: not to form an alliance of their own and also not to view Mr. Peterle as their representative in the Praesidium, but as a representative of national parliaments.53 While such a decision was probably mainly due to the fact that opinions and interests were very heterogeneous within the group of accession countries (cf. MM-14), it also had an important symbolic and psychological aspect reminiscent of what is commonly referred to as engrenage54: it communicated the willingness to transcend the loyalty to one’s in51 Elmar Brok, the leader of the group, forwarded his own full-blown constitutional draft to the Convention Secretariat already in September, 2002 (CONV 325/02). In October, the 15th Congress of the EPP in Estoril followed (http://www.epp-ed.org/Press/peve02/eve30_en.asp), and, in November, the group had another important meeting in Frascati. (cf. also Lamassoure 2004: 5152, 308-309) 52 Cf. MM-9: The representatives of candidate countries got assimilated very easily (.) it WAS a sort of experiment (↑) a step ahead recognition of future facts (1.0) and it has been fruitful (1.5) in the freedom to move and feeling of partnership (.) [bardzo łatwo asymilowali się przedstawiciele krajów kandydujących (.) to BYŁ swoisty eksperyment (↑) krok do przodu uznanie faktów przyszłych (1.0) i dało to owoce (1.5) w postaci swobodnego poruszania się i poczucia partnerstwa (.)] (59-61). 53 MM-12: there has been some attempts on behalf of certain candidate countries to create a group or having a joined opinion and we said well if there will be a TOPIC which is applying to us as candidates we yy we can do that but yy not as a general thing of general yy component or whatever (.) even in an informal one because yy well you are for the first time in a (.) European institution IN yy which is where you are have equal footing and immediately have a subchapter for the yyy for the disabled ((laughs)) or or the one so so you (.) so it was a very clear line and that was the Hungarian delegation’s yy point which has been accepted yyy (.) at the end that yyy we (.) we don‘t consider for instance Peterle AS representative OF candidate (.) he is a (.) representative of national parliaments and yy he consults (358-367). 54 The term engrenage was used by proponents of neo-functionalist theories of European integration to refer to the process of ‘meshing together’ of national civil servants in the Brussels-based institutions which was supposed to make them progressively more ‘Europeanist’ in orientation. Nowadays, the concept is also used by EU officials themselves as well as by academic and political experts (cf. Shore 2000: 147-148).

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stitutional and national background and to change one’s cognitive orientations. Of course, the social dimension of such a process needs to be kept in mind: people got to know each other in the Convention, they established new contacts and networks, made friends, maybe developed career options, and they went through a process of acculturation or ‘learning’: MM-10: I would say it was really a high school (≠) a high political school for me (.) [...] so I was able to develop I would say (.) new sensitivity for (.) for the (.) different positions yy and yyy it’s very IMPORTANT and interesting to discover the (.) the motivations or the interests or or to distinct between to see the small differences between allies and so on [...] so for me this was definitely a concentrated experience of European politics [...] (.) so I I SAID once that yyy I yy ‘ve got good professors and I try to be a good school boy in this (78-98)

From the ‘inside’, in this case a secretariat member, the same dynamics were observed: Sec-2: I was struck by listening to the speeches from accession countries in the listening phase, speeches which were very convenu, very conformist mainstream, conformist, more showing that they have understood than thinking further. [...] Perhaps if they not had acted that way that would not have been taken seriously.

This last quote points to another aspect of engrenage in the Convention, namely the role of social norms for regulating the process of consensus-building. In this respect, the term ‘consensus’ takes on a different character, namely denoting a social construct of normality and normativity, the blurry contours of which are constantly re-affirmed by positive and negative social sanctions. From such a perspective, consensus-building has less to do with rational convictions and arguments than with perceptions of what ‘everyone’ thinks, of what ‘everyone’ could support, and of what, on the other hand, would offend the ‘spirit’ of the Convention.55 To highlight this ‘sociological’ element in the Convention’s ‘consensus’, we proposed the term ‘mainstream’ which was used by several of our interviewees when reflecting about the slow but steady ‘narrowing’ of a discursive space (a ‘stream’ of communications) with respect to topics, language and opinions. To understand such dynamics of mainstreaming, one needs to look beyond or ‘below’ the level of rational exchange and the production of texts to those inconspicuous forces structuring the interaction of human beings which are grasped by notions like emulation or socialisation. The plenary sessions, for instance, can be revisited from this perspective as a peculiar social and spatial setting. A panorama 55 Over time, Convention members developed a ‘feeling’ for this: “Sur le rôle de l’Union, sur sa nature, sur les principes politiques et quasi philosophiques qui doivent la guider, rien n’est encore définitivement acquis, mais chacun sent qu’il y a un vrai consensus.” (Lamassoure 2004: 293, emphasis added)

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of positions, opinions and sentiments is produced which can easily be overviewed from the President’s table: which positions are supported by a broad majority, in which areas are vital interests claimed, which opinions can be seen as minority positions and thus ignored?56 Looked at from the perspective of Conventioneers, this panorama, together with summaries and conclusions from the chairmen, provide a representation of whether one’s own position conforms to the mainstream or not, and social pressure can be further reinforced by sanctions from the Presidium: whose opinions are honoured, and who is ignored or ridiculed, who is included in informal communication networks, and who is not? In this respect, Giscard was the first representative and guardian of the Convention’s social norm, which he would, for instance, express in his comments and summaries during plenary sessions. Often, in these remarks, Giscard used impersonal verbal constructions (e.g. on pense, nous notons etc.), thus speaking in the name of a general norm: reason, the majority of the Convention, an impersonal ‘we’ (see for example the verbatim protocols of the session from December 6, 2002, at 5-075). In this context, cases of explicit deviations from the norm are particularly telling. For instance, in the plenary session of May 30, 2003, five Convention members and four alternate members delivered their “minority report” to Giscard and called for “another way” for the EU (CONV 773/03). The British MP David Heathcoat-Amory acted as spokesperson. Arguing that the Convention’s result would “not reflect” their wishes, he approached the President’s table, accompanied by two colleagues, and handed his “minority report” over to Giscard. It was an awkward moment, and someone from the floor shouted, “au revoir”. Two months later, the same scene is repeated in the Convention’s final plenary session on July 10, 2003. After a series of speakers had applauded the new ‘constitutional treaty’, Jens-Peter Bonde, the sponsor of the “minority report”, took the floor. He criticised the draft treaty for establishing a new “super-state” and called for popular referendums. One person applauded. Laughter followed. Giscard: Well, that was a sort of referendum. (Laughter) (verbatim protocols, 4-009).

56 FM-4: [the debates work in a way] that certain ideas take on a certain weight, that one hears them over and over, and especially when one hears them from different circles, when for example sixteen MEPs say the same this is not as important as when four national parliamentarians, two government representatives and one from the Commission say it. (148-155)

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4. Conclusions Highlighting the contingency that marked the establishment and early phases of the ‘Convention on the Future of Europe’, this article has looked at some of the details of its proceedings in order to account for the remarkable success of establishing ‘consensus’ on one single ‘constitutional treaty’. Three aspects of what is rightly called the Convention method of consensus-building were analysed in the preceding sections: hardware (institutional and communicative set-up), software (culture) and process (mainstreaming). To begin with, the Convention method presupposed subjects who did not act strictly as representatives of their nominating bodies (i.e. who enjoyed some ‘room of manoeuvre’, cf. Pollak, Slominski 2004), and whose identities and preferences were thus open to be shaped through interaction. In the Convention, each member was supposed to act and be treated as an individual, not as bearer of interests or power. They should be open to reasoned argumentation, and they should not build alliances on an interest basis. At the same time, the institutional hardware of the Convention did not result in a process of reasoned ‘deliberation’ among free and equal participants.57 As pointed out in some detail above, its institutional and communicative conditions gave rise to a different dynamic: while the plenary sessions failed to be a forum of either preference aggregation, collective action or deliberation, it was the Praesidium, together with the Secretariat, who determined the way the Convention would take on the basis of a superior power position. Control over the agenda of the Convention, identifying issues to deal with and options to consider, drafting mandates of and chairing working groups, and thus slowly building up the Convention acquis, were all strongly selective processes and guided ‘from above’. However, power is not sufficient to explain the success of the Convention. With respect to the Convention’s software, we have shown how, in the Secretariat, differences of terminology were overcome and a ‘discursive interculture’ was established,, laying the foundations of a shared understanding of the EU’s status quo, functioning and the meaning of ‘progress’ in terms of treaty revision. While the Convention at large was very heterogeneous, the Secretariat was able to establish a coherent and well structured discourse which was easily accessible for those Conventioneers who had already worked in European institutions58 and who thus shared a common language. On the other hand, scattered proposals on single issues or visions of the ‘future of Europe’ which were incompatible with the semi57 On deliberation in the Convention cf. for example Magnette 2004; Eriksen, Fossum, Menéndez 2004.

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otic centre of the Convention (e.g. nationally coded concerns) had significantly lower chances of being represented in the ‘draft treaty’. Finally, the concrete process of consensus-building has been looked at from a sociological point of view, and the role of another important representative of the Convention’s social and semiotic centre, namely the component of MEPs, has been highlighted. While the work of the Praesidium and the Secretariat set the agenda, established the Convention acquis and constituted a certain normalising pressure on Conventioneers, the alignment of peripheral members behind the ‘consensus’ took place in a variety of semi- and informal groups and was clearly facilitated by the restless activities of MEPs: they were networking, animating intergroups, chairing the party political concourses, they drafted joint proposals and amendments, and thus they animated consensus-building at the concrete level of various sub-groups of the Convention. Over time, close social relations were established in those forums, and a process of mainstreaming could be observed: peripheral members would identify with the centre and emulate its language, while the Convention’s discursive space was gradually ‘narrowed’ with respect to topics and opinions.

4.1 The Limits of the Convention Method Many readers will find the preceding account incomplete, and for instance point to our lack of awareness for member states’ bargaining power or the role of government representatives in the Convention. We do not want to dispel such criticism with a reference to the selective and partial character of observation in general. Rather, it is time at this point to acknowledge that the Convention did not function exclusively along the lines of the ‘Convention method’ as described above. Such paradox was indeed built into the Convention from its very start. While the Laeken council mandated the Convention with preparing the next IGC, it reserved the power of decision for the ‘masters of the treaties’ according to Art. 48 TEU. Consequently, the absence of formal voting in the Convention implied a fundamental inequality among its members: while the voice of most of them could quite easily be ignored, government representatives on the other hand would still be involved in the IGC to decide upon the Convention’s results. The consequenc58 Most institutions decided to nominate ‘insiders’: 13 Conventioneers had already been involved in the first Convention, and among the component of national parliamentarians and government representatives were a number of former MEPs.

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es of this peculiar inequality turned out to be substantial. While the Convention method was generally successful in avoiding interest-driven behaviour, it could hardly be expected to turn government representatives into ordinary Conventioneers, especially not on those subjects that they perceived to be sensitive or crucial in terms of national interest (like money and power).59 Consequently, bargaining would eventually find its way into the Convention, but often not through official ways (i.e. papers published on the Convention’s website), but via other channels of influence:60 the latter included primarily Giscard himself, who kept up his ‘bilateral diplomacy’ throughout the Convention’s works, Sir John Kerr, the general secretary, and, in the Convention’s endgame, the Praesidium itself, which transformed more and more into an intergovernmental forum during the negotiations on the institutional chapter (Magnette/Nicolaidis 2004b; de Schoutheete 2003): from May, 2003, only few preparatory or intermediary documents were published at the Convention’s website, while negotiations and debates moved away from the plenary, and tactics, bilateral negotiations and package deals came to the fore. As Peter Norman (2003, 270-271) observes: The Convention had become a negotiation that was being conducted at many different levels: in numerous bi-lateral ‘confessionals’ and group meetings outside the plenary hall, and over mobile phones with the aides of national leaders who were attending the 300th anniversary celebrations of the Russian city of St Petersburg. Events in Brussels were no longer transparent. All statements were suspect. Dissembling and double-speak was now the norm.

For Conventioneers from a parliamentarian background, the said ‘limits of the Convention method’ were quite visible in the endgame. While MEPs and national parliamentarians succeeded in agreeing on common positions and even drafted joint proposals in those final days, the Praesidium revisions disappointed the hopes of their integrationist alliance. Rather than going with the majority of Con59 Many of those ‘hot’ issues (e.g. Common Foreign and Security Policy, range of issues to be decided upon by Qualified Majority Voting, ways of calculating the qualified majority vote, budget and tax issues, immigration policy, inclusion of the Charter of fundamental rights in the Draft Treaty, the composition of the European Parliament and of the Commission, etc.) had already been debated at the Summit of Nice, and they would also be at the heart of debate in the IGC following the works of the Convention. Basically, member states and EU institutions were characterised by the same positions throughout this process (cf. Fischer 2003: 33-46; Magnette and Nicolaidis 2004a, b). 60 For instance, the so-called “ABC-proposal” backed by Spanish Prime Minister Jose Maria Aznar, the UK’s Tony Blair and French President Jacques Chirac (advocating the election of a full-time President of the European Council) was informally communicated in spring 2002. France and Germany, too, presented their influential joint proposal on institutions to the public first, and only later officially forwarded it to the Convention (CONV 489/03) (cf. de Schoutheete 2003).

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ventioneers, Giscard focussed on making sure that the ‘red lines’ of key governments like the UK’s would be respected in the draft treaty. Thus, as Olsen (2004, 89-90) has recently pointed out, the final draft would clearly follow a statist approach on key issues like the provisions on the constituents of the Union (Art. I1 and I-5), the revision procedure, or Art. I-59 permitting unilateral withdrawal from the Union.

4.2 The Significance of the Convention Method While it would be worthwhile to reconstruct at the textual level the exact influence that the various member states and institutions had on the final draft treaty (cf. Fischer 2003, 33-99), this article has proposed to focus on the process rather than the outcome. What can such an approach tell us about the nature of the Convention, or about the ‘draft treaty’? First of all, we have highlighted the precarious and contingent character of the Convention’s ‘consensus’. The final draft presented by Giscard did not represent a thoroughgoing agreement on the principles of the European polity, based on reasoned deliberation, but it was highly dependent on the institutional milieu and process. It is crucial not to be carried away by the word ‘Constitution’ (with capital ‘C’), which figured prominently in the Convention’s rhetoric as well as among academic observers. Together with other terms from the language of political modernity (like sovereignty, people, law, society, democracy), ‘Constitution’ is part of a grid of interrelated concepts which share a common underlying ‘logic’: the body-politic is imagined as a unitary structure of vertical authority where the law expresses the will of the people which thus governs itself, and where society coincides with the population of the state, which politically and culturally is understood as a unitary subject, the nation. Within this paradigm, the ‘Constitution’ is more than the ‘highest law’: it is constituting a community, symbolising the idée directrice of a polity, and (as in the classical democratic tradition) instituting a relation of articulation and identification with a demos as pouvoir constituant. Recent writings on European constitutionalism have attempted to go beyond the statist paradigm in order to grasp the sui generis character of the European Union (e.g. Duso 2002; Nicolaidis/Weatherill 2003; Weiler/Wind 2003). The ethnographic perspective proposed in this article joins such efforts from a less idealistic point-of-view. Visiting the preconditions, practices and process of consensusbuilding, we have reconstructed the Convention as an institutional device for processing (not overcoming) plurality and difference. While this method was suc-

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cessful in reducing contingency and establishing the text of the ‘draft treaty’ in an incremental way, this did not amount to transforming Conventioneers into the subjects of a newly constituted political entity. The ‘consensus’ of the Convention reflects only a contextual and temporary agreement. It does not dissolve the constituents of the Union in a monolithic structure of authority (cf. Art. I-5 of the ‘draft treaty’), a European moi commun, but it only establishes a provisional political bond between the diverse political interests, imaginations and desires of the component parts.61 Europe’s political construction thus remains open to competing interpretations even after the conclusion of the Convention’s works (cf. Wiener 2003), and the bond which assembles its constituents remains contextual and contingent, in need of being re-affirmed over and over again. Our concluding evaluation of the merits of the Convention is ambivalent. On the one hand, as Bellamy and Schönlau (2004, 74) argued, one could highlight its achievement of “devising workable structures of governance that reflect the spirit of compromise and that will allow further compromises to be negotiated in the future.” One the other hand, such positive evaluation is limited to the task of consolidating and reforming the treaties, while success is difficult to see with respect to the broader mission of discussing “key issues arising for the Union’s future development” and thus to re-consider the finality and to re-affirm the legitimacy of an enlarged Union of 25. As it seems, the fundamental disagreements which triggered ‘constitutional debates’ in the first place are there to stay. Coming back to a distinction drawn by Joseph Weiler (1993) more than ten years ago, one might conclude that “formal” or “legal legitimacy” has once again outpaced concerns with “social legitimacy”. Further insights on this persistent lag will soon be provided by the (currently ongoing) ratification process.

5. References Abélès, M.(1992), La vie quotidienne au parlement européen. Paris. Abélès, M. (2000a),. Un ethnologue à l’Assemblée. Paris. Abélès, M. (2000b), ‘Virtual Europe’, in: I. Bellier/T. M. Wilson (eds). An Anthropology of the European Union. Building, Imagining and Experiencing the New Europe. Oxford, New York, 31-50. Bach, M. (1999), Die Bürokratisierung Europas. Verwaltungseliten, Experten und politische Legitimation in Europa. Frankfurt, New York. Beach, D. (2003), Towards a New Method of Constitutional Bargaining? The Role and Impact of EU Institutions in the IGC and Convention Methods of Treaty Reform Federal Trust Online Essay, No. 13/03.

61 Cf. the concept of a European ‘demoi-cracy’ discussed in Nicolaidis (2003).

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Bellamy, R./ Schönlau, J. (2004), ‘The Good, the Bad and the Ugly. The need for constitutional compromise and the drafting of the EU Constitution’, in: L. Dobson/A. Follesdal (eds.), Political Theory and the European Constitution. London, New York, 56-74. Checkel, J. (1999), ‘Social Construction and European Integration’, Journal of European Public Policy 6/4, 545-560. Checkel, J. (2004), ‘Social Constructivisms in Global and European Politics (A Review Essay)’, Review of International Studies 30, 229-244. Christiansen, T./Joergenssen K. E./Wiener, A. (1999), ‚The social construction of Europe’, Journal of European Public Policy 6/4, 528-544. de Schoutheete, P. (2003), Debate on the European Council in the Convention. Royal Institute for International Relations Occassional Papers, http://www.irri-kiib.be, 2005-09-12 Deloche, F. (2002), ‘La Convention pour l’élaboration de la charte des droits fondamentaux: une méthode constituante?’, in: Dehousse, R. (ed). Une constitution pour l’Europe? Paris, 177-226. Deloche-Gaudez, F. (2004), ‘Le Secretariat de la Convention Européenne: Un acteur influent’, politique européenne 13 (spring), 43-67. Diez, T. (1999), ‘Speaking ‘Europe’: the politics of integration discourse’ Journal of European Public Policy 6/4, 598-613. Drulàk, P. (2003), Metaphors Europe Lives by. Language and Institutional Change of the European Union. RSCAS Discussion Paper, EUI, Florence. Duff, A. (2003), ‚Der Beitrag des Europäischen Parlaments zum Konvent: Treibende Kraft für einen Konsens’ integration 26/1, 3–9. Duso, G. (2002), ‘L'Europa e la fine della sovranità’ Quaderni fiorentini per la storia del pensiero giuridico moderno 31, 109-139. Eriksen, E. O./ Fossum, J. E./ Menendez A. J. (eds.) (2004), Developing a Constitution for Europe. London, New York. Fischer, K. H. (2003), Konvent zur Zukunft Europas. Texte und Kommentar mit einem Geleitwort von Dr. Benita Ferrero-Waldner, enschließlich Begleit-CD-ROM mit Gesamtdokumentation. BadenBaden. Giscard d’Estaing, V. (2002), Introductory Speech to the Convention on the Future of Europe. SN 1565/02, Brussels (delivered 28 February). Gumperz, J. (1968), ‘The speech community’, in: Giglioli P. P. (ed.), Language and Social Context. London, 219-231. Heidenreich, M. (2003), ‚Die Osterweiterung auf der Zielgeraden: Von rhetorischem Handeln zum Beitritt’, in: Baum P. et al. (eds). Die Erweiterung der Europäischen Union. Ein Exkursionsbericht (Bamberger Beiträge zur Europaforschung und zur internationalen Politik 7/2003). Bamberg, 5-14. House of Lords, Select Committee on the European Union (2002), The Convention on the Future of Europe. With Evidence. London. Jachtenfuchs, M. (2002), Die Konstruktion Europas. Verfassungsideen und institutionelle Entwicklung. Baden-Baden. Johnston, A. I. (2001), ‘Treating International Institutions as Social Environments’ International Studies Quarterly 45/4, 487-515. Jupille, J./ Caporaso, J. A./ Checkel, J. T. (2003) ‘Integrating Institutions: Rationalism, Constructivism, and the Study of the European Union’ Comparative Political Studies 36/1-2 (special issue), 7-40. Kerremans, B. (1996), ‘Do institutions make a difference? Non-institutionalism, neo-institutionalism and the logic of common decision-making in the European Union’ Governance 9, 215-240.

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Koole, T./Thije, J. (1994), The Construction of Intercultural Discourse. Team Discussions of Educational Advisers. Amsterdam, Atlanta/Georgia. Krzyzanowski, M. (2005)’’European Identity Wanted!’ On Discursive Dimensions of the European Convention’, in: Wodak, R./ Chilton, P. (eds.): A New Research Agenda in (Critical) Discourse Analysis. Theory, Methodology and Interdisciplinarity. Amsterdam/Phil., 137-163. Krzyzanowski, M./ Oberhuber, F. (forthcoming), The Making of the European Constitution. Brussels et al. Laeken Declaration (2001), The Laeken Declaration on the Future of the European Union. Annex 1 to the Presidency Conclusions of the European Council Meeting in Laeken, 14-15 December 2001. Brussels, No. SN 300/1/01 REV 1, 19-27. Lamassoure, A. (2004), Histoire secrète de la Convention Européenne. Paris. Loos, E. (2004), ‘Composing ‘panacea texts’ at the European Parliament. An intertextual perspective on text production in a multilingual community’ Journal of Language and Politics 3/1: 3–24. Lotman, Y. M. (1990), Universe of the Mind. A Semiotic Theory of Culture. Bloomington, Indianapolis. Magnette, P./ Nicolaidis, K. (2004a), ‘The European Convention: Bargaining in the shadow of Rhetoric’ West European Politics 27/3, 381-404. Magnette, P./ Nicolaidis, K. (2004b), ‘Coping with the Lilliput syndrom. Large vs. small member states in the European Convention’, in: Paul Magnette and Yves Surel (ed.): Réformer l’Europe: la convention européenne (= Politique Européenne no. 13). Magnette, P. (2002), Délibération vs. négociation. Une première analyse de la Convention sur l’avenir de l’Union. Paper presented at the 7th congress of the French Association for Political Science, September 2002. Magnette, P. (2004), ‘La Convention européenne: argumenter et négocier dans une assemblée constituante multinationale’ Revue française de science politique 54/1, 5-42. Matl, S. (2003), Die Beiträge des Konvents bis zum 28.10.2002 (Plenardebatte). Berlin. Mény, Y. (2003), ‘The EUI and the Constitutional Reform of the European Union’, EUIreview Winter 2003: 1–2. Muntigl, P./ Weiss, G./Wodak R. (2000), European Union Discourses on Un/employment. An interdisciplinary approach to employment policy-making and organizational change. Amsterdam/Pa. Nicolaidis, K./ Weatherill, S. (eds.) (2003), Whose Europe? National Models and the Constitution of the European Union. Oxford. Nicolaidis, K. (2003), ‘Our European Demoi-cracy: Is this Constitution a Third Way for Europe?’, in: Kalypso N./ Weatherill, S. (eds.), Whose Europe? National Models and the Constitution of the European Union. Oxford. Norman, P. (2003), The Accidental Constitution. The Story of the European Convention. Brussels. Oberhuber, F. (2005), ‘Deliberation or ‘Mainstreaming’? Empirically Researching the European Convention’, in: Wodak, R./Chilton P. (eds), A New Research Agenda in (Critical) Discourse Analysis. Theory, Methodology and Interdisciplinarity. Amsterdam/Phil., 165-187. Olsen, T. V. (2004), ‘Europe: united under God? Or not?’, in: Dobson, L./ Follesdal, A. (eds.), Political Theory and the European Constitution. London, New York, 75-90. Peters, A. (2001), Elemente einer Theorie der Verfassung Europas, Berlin. Pollak, J./Slominski, P. (2004), ‘The Representative Quality of EU Treaty Reform: A Comparison between the IGC and the Convention’ Journal of European Integration 26/3, 201-226. Shaw, J. (2003), What’s in a Convention? Process and substance in the project of European constitution-building, Vienna: Institute for Advanced Studies (Political Science Series, 89).

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Shore, C. (2000), Building Europe. The Cultural Politics of European Integration, London, New York. Stuart, G. (2003), The Making of Europe’s Constitution. London. Weiler, J. H. H. (1999), ‘Introduction: ‘We will do, and hearken’, in: Weiler, J., The Constitution of Europe. ”Do the new Clothes have an Emperor?” and other essays on European integration. Cambridge, 3-9. Weiler, J. H.H. (1993), ‘After Maastricht: Community Legitimacy in Post-1992 Europe’, in: William J. A. (ed.), Singular Europe: Economy and Polity of the European Community after 1992, Ann Arbor, 11-41. Weiler, J. H.H./ Wind, M. (2003), European Constitutionalism beyond the State, Cambridge. Weiss, G. (2002), ‘Searching for Europe. The problem of legitimisation and representation in recent political speeches on Europe’ Journal of Language and Politics 1:1, 59-84. Weßels, B. (2003), ‚Parlamentarier in Europa und europäische Integration: Einstellungen zur zukünftigen politischen Ordnung und zum institutionellen Wandel der Europäischen Union’, in: Brettschneider, F./ van Deth, J./ Roller, E. (eds), Europäische Integration in der öffentlichen Meinung, Opladen, 363-394. Wessels, W. (2003), ‚Der Verfassungsvertrag im Integrationstrend: Eine Zusammenschau zentraler Ergebnisse’ integration 26/4: 284–300. Wiener, A. (2004), ‚Die Verfassung Europas. Konturen eines europäischen Konstitutionalismus’, integration 3/2004, 176-185. Wodak, R. (2000), ‘Recontextualisation and the transformation of meaning: a critical discourse analysis of decision making in EU-meetings about employment policies’, in: Sarangi, S./ Coulthard, M. (eds.): Discourse and Social Life, Harlow, 185-206. Wodak, R. (2004), ‘National and transnational Identities: European and Other Identities Oriented to in Interviews with EU Officials’, in: Herrmann, R. K./ Risse, T./ Brewer, M. B./ Risse-Kappen T. (eds.), Transnational Identites: Becoming European in the EU, Lanham, 97-128.

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Deliberation and Compromise in the Shadow of Bargaining The Convention Method as a Test for EU System Development Andreas Maurer1

‘We are a Convention. We are not an Intergovernmental Conference because we have not been given a mandate by Governments to negotiate on their behalf the solutions which we propose. We are not a Parliament because we are not an institution elected by citizens to draft legislative texts. That role belongs to the European Parliament and to national Parliaments. We are a Convention. What does that mean?’ Valery Giscard d’Estaing at the inaugural meeting of the Convention on the Future of Europe, 28 February, 2002

‘Our constitution cannot be reduced to a mere treaty for co-operation between governments. Anyone who has not yet grasped this fact deserves to wear the dunce's cap’ Valery Giscard d’Estaing, Aachen Speech accepting the Charlemagne Prize for European integration 29 May 2003

1. The EU’s Constitutional Convention and European System development This article attempts to explore the Convention method along the major outlines of the theoretical concept of deliberative democracy. Although the vast majority of scholars of EU integration and practitioners agree about the distinction between the Convention and the IGC methods with regard to their capacities for reaching decisions, one should bear in mind that the Convention could be perceived as a distinct political institution – a social and political forum or working party of various aggregated interests – , and as a process of deliberating and taking decisions.

1

SWP Berlin, [email protected].

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My argument is that the Convention method, in comparison with IGC’s, can be seen as an alternative way for steering system change and fundamental reform of the European Union, because it features participative and inclusive forms of open deliberation, it respects and integrates the relative importance of minority positions, it offers open fora for a specific kind of “para-parliamentary” discourse and helps to include national parliaments – the major source for legitimising EU primary law – at an early stage of system building, and it is conditioned by the method of consensus-building. To visualise the originality of the Convention, I restrict my analysis to the issue of democracy and democratisation of the European Union as well as to the roles performed by the European Parliament and national parliaments throughout the Convention and IGC process. The Convention on the Future of Europe began its work on 28 February 2002 with the mandate “to consider the key issues arising for the Union’s future development and try to identify the various possible responses” (Laeken Declaration, December 2001). These “key issues” comprised an overall reform of the EU institutions, the simplification of the treaties, and addressing the democracy and legitimacy deficit of the Union. More specifically, the Laeken European Council of December 2001 agreed on a set of questions with regard to the future design of the EU’s institutions and their democratic legitimacy. According to the Laeken declaration on the future of the European Union, “the European Union derives its legitimacy from the democratic values it projects, the aims it pursues and the powers and instruments it possesses [and...] from democratic, transparent and efficient institutions (European Council 2001)”. Although this statement suggests a broad normative consensus about the state of democracy and legitimacy in the EU, the heads of state and government mandated the recent Convention to deliberate on some of the most traditional questions to be answered when establishing any political system. Overall, the Laeken mandate mirrored an unequivocal picture of the EU: The Union remains designed as a political system in process. Although it is based on some of the most traditional concepts of representative democracy, the system requires improvement. However, the very nature of the mandate and its context – the failure of the Treaty of Nice, the perspective of an enlarged Union of 25 and more member states, and the effects of a globalised economy and trans-national risk production – show that these concepts are not fully implemented. In other words: The European Union faces serious problems with regard to the relationship between its governing bodies and its citizens. The very question of the Convention therefore was: Should, and if yes, how should the EU provide new or reformed opportunity structures for establishing a democratic, polyarchic system for a mixture of supra-, transnational and intergov-

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ernmental policy-making? Are there any means to reconstruct and to visualise a concept of democracy, which allows the Union to further build on its differentiated set of institutions, and to gain a positive feedback by its citizens? These questions were not new. Since 1986, four Intergovernmental Conferences (Single European Act, 1986/87, Treaty of Maastricht 1992/1993, Treaty of Amsterdam 1997/1999, Treaty of Nice 2000/2003) dealt with similar questions.

2. Issue Tracking – European Demos as a Prerequisite or an Outcome of European Integration? Within the EU’s political and institutional context, democracy can be defined as the “institutionalization of a set of procedures for the control of governance which guarantees the participation of those who are governed in the adoption of collectively binding decisions” (Jachtenfuchs 1998, 47). Of course, this definition does not automatically induce democracy to be synonymous with parliamentary majority vs. minority government. At least theoretically, there are many ways to secure the participation of the citizenry in governing a given polity. But if we turn to the evolution of the EU over the last decades, we observe a clear trend: The search for establishing some kind of representative governance structures, in which institutions aggregate participation needs and try to fulfil their general function as arenas and rules for making binding decisions, and for structuring the relationship between individuals in various units of the polity and economy. The EU performs as a political system which is entitled to limit national sovereignty and which is enabled to take decisions directly binding the residents of its constituent members without the prior and individual assent of each national government requires more than the formal approval of founding treaties and their subsequent amendments (Weiler 1993): Such a system necessitates the willingness of minorities to accept the decisions of the majority within the boundaries of the EU’s polity. In other words, decisions have to be based on a broad acceptance of the overall system. Even if the citizenry of the EU polity is not fully aware of or interested in the way binding decisions about their way of life are taken, the system and its institutions must be aware of the risk that the public attitude towards it can shift from some kind of a ‘permissive consensus’ or ‘benevolent indifference’ to fundamental scepticism. Generally, the legitimacy of governance can be derived from historically and geographically contingent sources. With regard to the analysis of the governance in the European Union, Scharpf’s (1970; 1998) distinction of output (government for the people or effective performance) and input legitimization (government by the people or representativness) has been widely used, irrespec-

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tive of some terminological variations. In the context of European governance a third legitimating factor is often highlighted: the requirement for communitarian cohesion or civic identity. In this regard, the heart of the democratic deficit features the argument of a growing mismatch between the powers exercised in and through EU institutions, fora and procedures, and the channels, structures and sanctions to influence and control the formulation and implementation of policy. The EU’s institutional design thus faces a multitude of questions as to how representative this system of multi-level governance is, in which way its quasi-executive branches – the Council and the Commission – are accountable to the citizens and how democratic the decision-making procedures between the Union’s authorities are. The presumed lack of linkage and control applies not only to European but also to national actors, most notably governments, which are seen as removed from parliamentarian or public scrutiny. In this sense, the lack of control over government-like institutions firstly at the national and secondly at the European level – the Council of the EU – generates a ‘double democratic deficit’. Some even see a triple deficit, arguing that current (or future) levels of integration presuppose the existence of a European ‘demos’. True, the evidence for a transnational identity within in the Union is weak and the chance of creating one in the near future seem bleak because of the lack of intermediary structures and agents (transnational parties, media, common language etc.). The EU system takes binding decisions, which influence the citizens’ ways of living and constrains their individual freedom. The EU system affects national legislatures and their linkage with the citizens. Of course, arguing about parliaments and their potential to provide the European ‘Demoi’ – functionally, nationally or ideologically different realms of identity and interest formation, mediation and communication – a set of representative voices in the Union’s policy cycle does not mean that parliamentarism is the only way of bridging the gap between the citizens and the Union. One can easily assume that even after the Nice Treaty has come to force, many scholars and practitioners of European integration will continue to argue that focusing on the ‘input’ structures of the Union is only one of several ways how governance “beyond the state” (Jachtenfuchs/Kohler-Koch 1996) might gain legitimacy. In this respect, one could also imagine a ‘renaissance’ of the German Constitutional Court’s 1993 Maastricht ruling, which lead to a general critique of the EU’s parliamentary model. The basic assumption of the Court and later on its protagonist commentators was that a polity presupposes a demos in ethno-national or ethno-cultural terms (the “Volk” instead of the “Gesellschaft” or “Gemeinschaft”). Thus, without a single European people sharing heritage, language, culture and ethnic background, and without a European public space of commu-

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nication that could shape the wills and opinion of the population, no European statehood could be founded. For those who adopt this view (Kielmansegg 1996, 47-72; Grimm 1995, 282-302), it is apparent to simply deny the pre-constitutional conditions for further integration and therefore to conclude that in the absence of a single European demos there cannot be ‘real’ democracy at the European level (Weiler 1993, 11-41; Weiler/Haltern/Mayer 1995, 24-33). Assume that a sociopolitical entity, which is willing to produce democratic forms of governance, can not simply dictate structural prerequisites and pre-constitutional elements of the future polity. One could then develop these arguments further to conclude that any attempt of institutional and procedural reform is unreasonable unless the different European Demoi are not identifying themselves as part of an emerging European Demos. Against this line of analysis, I argue that the missing ‘demos’ is not a prerequisite, but an ideal product of successful integration and institutional design. I here refer to Habermas’ analysis on the relationship between institution building and citizenship formation. He argues that “the ethical-political self-understanding of citizens in a democratic community must not be taken as a historical-cultural a priori that makes democratic will-formation possible, but rather as the flowing contents of a circulatory process that is generated through the legal institutionalisation of citizens’ communication. This is precisely how national identities were formed in modern Europe. Therefore it is to be expected that the political institutions to be created by a European constitution would have an inducing effect” (Habermas 1995, 306-307). In other terms, the “demos is constructed via democratic ‘praxis’. [...] Instead of ‘no EU democracy without a European demos’, we have ‘no European demos without EU democracy’” (Hix 1998, 38-65). Taking this perspective seriously, I consider the very process of European integration as an ongoing search for opportunity structures, which allow the institutions of the EU’s multi-level system to combine several demands for democracy-building beyond, but still with the nation state. Whether this process leads to the self-identification and further stabilisation of various ‘demoi’ or of one single European ‘demos’ remains an open question.

3. The Need for Sustainable Debate and the Convention as its Medium An essential element of the democratic ideal is discussion, persuasion and compromise, the majority ought not to push unilaterally for its own preferences since it has an obligation to discuss everything with the minority and should be ever

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ready to compromise – even when a simple majority is easily obtained. The basic principle is to continue debate until there is no other way forward or alternative than to take a vote. The debate should be fair and equal, the participants must assume that they are all equal and be prepared to hear all the arguments. Thus the democratic dialogue is believed to have an intrinsic value, creating democratic individuals who will allow and respect a different opinion, consequently reducing the tension between the different interests in society (Ross 1967, 112). More pragmatic arguments have been made in favour of more consensual decision-making in a democratic society, especially by those underlining the importance of the links between the decision-making process and the implementation/ratification process.

3.1 Deliberative Democracy and its Problems What is understood by deliberative democracy? Some see it as a special form of communication between the people and the rulers while others stress the communicative aspect as such. As expressed by Eriksen and Fossum with regard to the difference between a deliberative procedure and a traditional bargaining process: “The problem of bargaining and voting procedures is that they encourage a process of give-and-take, pork barrelling, log-rolling etc. that does not change opinions, necessitates learning or enlargement or refinements of perspectives – there is moulding of a common rational will. In a way it signals that the discussion has come to a standstill – a deadlock. It also indicates that the parties have accepted an outcome, but not because it is an optimal outcome. They accepted it because of the resources and power relations involved. Each participant would ideally like another and better outcome for themselves, but can live with the agreement that has been obtained” (Eriksen 2000, 60). However, when it comes to arguing and deliberative processes, ultimately someone has to change position or at least change her/his view during the discussion in order to reach an agreement. And if there is a common problem which needs to be solved, it is of vital importance that the actors agree on what action to take, i.e. a moulding of the common will is required (Eriksen 2000, 60-62). Seyla Benhabib and Joshua Cohen have been rather explicit about what characterises a deliberative process. According to Cohen, there are four key concepts of such a process: ● First of all, the participants are free, they are only bound by the results of the deliberation and they supposedly can act on the results. ● Secondly, the deliberation is reasoned, no force is exercised except that of the better argument.

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Thirdly, parties are both formally and substantively equal – each person or party with deliberative capacities has equal standing at every stage of the deliberative process. ● Finally, deliberation aims to arrive at a rational, motivated consensus – “to find reasons that are persuasive to all who are committed to acting on the results of a free and reasoned assessment of alternatives by equals” (Cohen 1999, 74). The theory thus assumes a close link between the procedure and the result of a given deliberative process. Legitimacy is established by means of free and open debate, but it is not the discussion as such which constitutes the essential element from which legitimacy is derived – the outcome of the discussion must also be accepted by the participants and the nature of it must belong to a particular category – it has to be rational and to solve the problem. This kind of linkage between process and legitimacy fits the democratic structure of the European Union, since the EU system lacks an independent decisionmaking structure, which is based on central and hierarchical authority, a collective identity derived from a common history, tradition or fate, a sovereign community based on fixed, contiguous and clearly delimited territory, and a set of explicit principles established and sanctioned by international law (Eriksen/Fossum 2000, 256). Effective and accepted integration in such a system is then rooted in the power sharing system of the EU as such and the role played by institutions which could be identified as arenas. In comparison to formalized means of participation, the first apparent advantage of deliberative democracy through a multiple-way process of free speech is the avoidance of institutionalizing veto power. None of the participants in the political process is provided with any additional rights to stall, procrastinate, or veto proposed decisions beyond the formal rules of procedure. In fact, theorists of deliberative democracy maintain that the promotion of arguing over bargaining encourages more effective decision-making (Risse-Kappen 1996; 2000; Eriksen 2000, 59-61). Participants are more likely to reach optimal solutions, because they share not only information freely but also a common frame of reference, while lowest common denominator outcomes are more likely in negotiations in which strategic rationality and bargaining dominate (Risse 2000). In addition, discursive approaches emphasize the gains in knowledge and policy know-how, if the arena of participants and the channels for feed-back are widened. This would help to recognize negative side-effects of decisions early on in the decision-making process, preventing costly procrastination, adjustment, or termination of policies during or after the implementation phase. At the same time, public discourse offers a means of overcoming the representativeness dilemma associated with formal electoral procedures. Indeed, vot-

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ing is just one procedure of linking public preferences with governance, not its essence. As Dahl pointed out, “democracy cannot be justified merely as a system for translating the raw, uninformed will of a population majority into public policy” (Dahl 1998, 30). He emphasizes that “each citizens ought to have adequate and equal opportunities for discovering and validating (within the time permitted by the need for a decision) the choice on the matter to be decided that would best serve the citizen’s interest” (1998, 112). From this perspective, formal procedures of aggregating and projecting preferences into the political systems are little more than empty shells if citizens are not able to form an enlightened opinion about political affairs. Turning the argument around, however, one may ask whether these deliberative elements alone can suffice? There are discernible differences between those who see the deliberative element as an essential part of a democratic society and those who want to stress that it is merely a supplement. Saward underlines: “Advocates often contrast deliberative and merely ‘aggregative’ traditional democratic theory; in the former, citizen preferences are forged through a process of structured debate focused on the need to realise the common good, while in the latter, unrefined and perhaps uninformed preferences are merely counted up to produce public policy” (Saward 1998, 64). However, the concerns of the ‘deliberationists’ are in fact rather narrow. No matter how much deliberation takes place, heads mirroring positions have to be counted – ‘aggregative’ – at some point if a democratic decision is to be reached. Clearly, no adequate model of democracy can fail to be aggregative in the end. In other words, the deliberative model of democracy does not already physically exist; it needs to be activated, constructed and visualised by those who participate in one of the EU’s arenas. Actors are not compelled to make an effort to increase public deliberation on policies within a larger ‘aggregative’ framework of constitutional democratic provisions (Saward 1998, 64-66).

3.2 Deliberative Democracy and the Convention method 3.2.1 The Empirical Reality of Deliberative Democracy: The Convention on the Charter on Fundamental Rights The idea of a European Union Bill of Rights has been discussed since the middle of 1970, mostly supported by the European Parliament. But it was not until 1999, on a German initiative, that the Charter process was launched with a decision of the European Council in Cologne (European Council 1999). The purpose was to

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strengthen the protection of fundamental rights in the EU by making the already existing ones more visible to the EU citizens. Meetings of the Convention took place from December 1999 until the autumn of 2000. After agreement of a final text of the Charter, the Presidents of the European Parliament, the Council of the European Union and the European Commission proclaimed the Charter on the 7th December 2000 on the fringes of the Nice European Council (OJEC 364/8, 18 December 2000). The composition of the Convention and the working methods, as laid out in an annex to the Conclusions of the European Council in Tampere, in October 1999, were rather unique. The Convention was composed of 62 Members representing the Heads of State and Government (15), the President of the European Commission, the European Parliament (16) and the national parliaments (30). The European Court of Justice and the Council of Europe, including the European Court of Human Rights, participated as observers. The Convention and its Presidium, comprising Members from each of the four categories of representatives, was assisted by a Secretariat staffed by the Legal Service of the Council. The drafting process of the Charter was a compromise taken without a formal vote. Compared with IGC’s, it was open and participative in nature. It “brilliantly combined representative democracy with more participatory forms of democracy and unparalleled access to the process of European decision-making” (Mc Crudden 2001, 10). However, this nature of the Charter’s Convention was also due to the fact, that the drafting of the Charter constituted a relatively narrow set of interests and arguments. Moreover, the Secretariat clearly dominated the drafting process and facilitated the early drafting of the Charter. As de Búrca concludes, “this was not to be a genuinely participative process but one which, albeit deliberative in nature, was to be composed only of institutional representatives from the national and European level” (De Búrca 2001, 131). Moreover, “the secretariat to the convention body, which was drawn mainly from the General secretariat of the Council [...] was one of the less obvious but nonetheless significant influences on the drafting of the Charter” (De Búrca 2001, 134). Members of the Convention submitted 205 written contributions and a total of 1406 amendments to the Charter’s draft of the Presidium. As regards initial contributions, the most active group was the governments’ representatives followed by the EP and the national parliaments. MEP’s and MP’s arranged to submit two contributions jointly, whereas government representatives were able to agree three times on joint texts.

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Contributions to the Convention on Fundamental Rights Secretariat Presidium

EP

COM

Government

National NGO’s Parliament and others

Unilateral

22

32

14

1

28

11

151

In Percent

8,3

12,1

5,3

0,3

10,6

4,1

57,2

Bilateral

2

3 Gov/ Gov

2

In Percent

0,75

1

0,75

The initial dominance of the government representatives is not confirmed when considering the relative proportion of amendments. Here, MEP’s produced an overall of 405 documents against 400 by national parliamentarians and 356 by government representatives. Within these two last groups, the most active were MP’s from Germany, Italy and Spain, and government representatives from the Netherlands, the United Kingdom, Italy and Spain. As regards the European Parliament, the PES delegation proved to be the most active. The larger PPE delegation did produce ‘only’ 78 amendments, whereas the smaller groups of the ELDR, the Greens, UEN and the GUE submitted between 26 and 45 amendments. Charter Amendments submitted Dec. 99 – Nov. 2000 Governments

D

I

E

F

NL

A LUX

P

UK SF

B

DK GR IRE

S

2

40

40

21

59

28

0

51

11

33

30

34

D

I

E

F

NL

A LUX

P

UK SF

B

DK GR IRE

71

67

52

37

37

36

28

27

27

13

13

0

0

0

0

Sum: GOV and NP 73 107 92

58

96

64

30

27

78

24

46

30

2

5

34

Parliaments

EP Contributions EPP 78

2

2

5

S

PES

ELDR

Greens

UEN

EDD

GUE

Others

147

45

41

36

8

26

24

Compared with the MP’s, the MEP’s had some clear advantages in steering the Convention’s process. They already work together in one single parliament and they were accustomed to a degree of parliamentary working and party discipline.

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Outside the Convention, they had many opportunities to meet – either within the framework of their delegation meetings or within their preparatory meeting of the political groups. Finally, they could act on their home ground, work on the basis of input given by a joint administration and their own legal service. The situation of the MP’s differed largely: Firstly, they were not put on an equal footing with the EP, the Council and the Commission, since the Cologne European Council conclusions only called the EU’s institutions to proclaim the charter. Moreover, MP’s had to choose between their ongoing national obligations and their potential participation in the Convention. But most importantly, the MP’s were not accustomed to working together, they did not had any feeling of acting on home ground and they could not rely on a joint secretariat. Overall thus, the Convention featured some disparities both with regard to the ‘standing’ and the activity of its members. However, the Convention managed to agree on a final text without some kind of voting, but through a complex sequence of open debate and secretive steering. Hence, the Presidium and Secretariat played the key role in preparing the draft Charter. The European Council conclusions of Tampere mandated the Presidium to "elaborate a preliminary Draft Charter, taking account of drafting proposals submitted by any member of the Body." Indeed, the Presidium produced a series of papers which not only reflected the ongoing discussions and incoming proposals, but which also steered them by an authoritative process of anticipating large and convincing majorities. The absence of real voting clearly facilitated the deliberative method of the Convention, but it also hindered the transparency of the Charter’s drafting process. The price of consensus-seeking had been fixed outside the Convention’s plenary, where some kind of bargaining took place outside the debating chamber. In this context, the European Parliament delegation was much more efficient than the MP’s. The latter were more heterogeneous, and they needed to build larger alliances with either the EP or some government representatives in order to put their views across. The PES delegation of the European Parliament organised meetings in which MP’s of the PES family did participate. Other national MPs, especially those from France and the United Kingdom, turned to their respective governments for support. The Charter was adopted without voting, thanks to the "iterative consensus-seeking" process (Deloche-Gaudez 2001, 23). Consensusbuilding instead of unanimity thus constitutes the fundamental difference between the Convention and the last IGC’s. If the IGC’s possibility to veto a position enables each delegation to threaten deadlock, the Convention’s process of an ongoing deliberation among rather open-minded actors facilitated the agreement and – perhaps more important – the evolution of a system of mutual recognition of views and ideals. The Charter process thus constituted a challenge to the elite-oriented

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and secretive mode of fashioning system change through IGC’s. The process was deemed so successful that the Laeken European Summit in December 2001 decided to use the Charter mode as the basis for subsequent treaty changes, through establishing a Convention. However, there were some considerable limitations on the liberty of the actors and the deliberative nature of the Charter process. Firstly, the European Council fixed a deadline; the Charter had to be drafted in order to be pronounced at the Nice Summit, in December 2000. Secondly, the mandate was formulated by the Heads of State and Government. And even if the Charter process was open, the drafting history of individual provisions (Stechele 2001) and the purpose of the incremental changes from draft to draft were far from transparent. “In some ways, tracking provisions of human rights conventions drawn up at diplomatic conferences under the auspices of the United Nations is easier” (Liisberg 2001, 18). Insofar, the Charter process was probably not better suited than traditional diplomacy to bring about legal certainty of the end-result – especially when the work takes place under the kind of time pressure the Convention was subject to. In sum, the Charter’s process can be seen as an early trial-and-error-sequence for testing the method of consensus-seeking with some elements, which are highlighted by the theoretical concept of deliberative democracy. However, the method was successful because the heads of state and government, the Presidium and the Secretariat acted as core catalysts and key aggregators of the actors involved.

3.2.2 The 2002/2003 Convention on the Future of the Union Given the main reasoning behind the Convention on the future of the EU – the relative failure of the Nice summit, the non-answered questions regarding institutional reform and the ‘EU-XXL’-perspective –, its success was measured by three criteria. First and foremost, the Convention had to present innovative proposals to effectively overcome the deadlock on EU reform. It had to prove to be more effective than IGC’s. Secondly, the Convention’s process and its substantial results needed to incorporate broad societal support and to secure political legitimacy for some kind of a constitutional treaty. Thirdly, and consequently, the Convention was asked to adopt its result by consensus and not on the basis of the lowest common denominator. Otherwise, the 2004 IGC was likely to by-pass the Convention’s result. The 2002/2003 Convention was composed of 15 representatives of the governments of the EU, plus 13 of the accession candidate countries governments, 30 national parliamentarians (2 per Member State) plus similarly 26 of the candidate

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countries, 16 members of the European Parliament, and 2 members of the European Commission. Moreover the European Ombudsman, social partners, the Committee of the Regions and the Economic and Social Committee had official observers with speaking rights. On top of the 102 members and 13 observers, the Laeken European Council appointed former French president Giscard d’Estaing as the Chairman, and former prime ministers of Italy (Amato) and Belgium (Dehaene) as vice-chairmen to lead the Convention. These three formed the Presidium of the Convention, together with the two Commissioners (Barnier and Vitorino), with two representatives of the European and two of the national parliaments, and with the three government representatives of the member states that hold the presidency during the Convention (Spain, Denmark and Greece). Like during the Charter’s Convention, the Presidium played an important and rather dominant role in the proceedings. Unlike the Charter’s Convention, the substitute members of the 2002 Convention were real alternates. They were meant to only actively participate if their full member has apologized in advance. The principle of consensus-building that was developed during the first Convention was written in the Convention’s draft rules of procedure which stated that representatives of the candidate states can not prevent such consensus. On the other hand, the draft rules gave room for indicative votes. Compared to the Charter’s Convention, the number and strength of the EP delegation shrunk considerably. Hence, the EP still provided for 16 MEP's, whereas the total number of ‘Conventionels’ had almost doubled. As MEP Ieke van den Burg notes, that “added to that the restricted role of substitutes is another loss of influence. In the Charter Convention the EP substitutes were more actively and independently involved than other substitutes that acted more often only as alternates if the full member was not present. It’s to be seen whether the greater cohesion inside the EP section [...], will outweigh this numerical decline” (Van den Burg 2002, 2). The biggest difference with the Charter’s Convention was the addition of the members of the candidate countries. They did not have a single observer per country, but a government representative and two parliamentarians, at an equal footing with the present member states. Given the common disadvantages of MP’s and representatives from the non-EU-members, the latter were keen to ally with the national parliamentarians. Consequently, national MP’s could choose between allying with MEP’s, governments and/or with the large group of non-EU-members. The tensions between the different groups were thus more visible than during the Charter’s Convention. During the Charter Convention the MEP’s brought together MP’s along the lines of the political families. Given the positive outcome of this kind of alliance-building, both the PES and the PPE groups of the EP started to steer political family discourse right from the start of the Convention. Both EP

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group delegations organised joint preparatory meetings before each Convention’s plenary. Moreover, both the EPP and the PES organised summer seminars in 2002 bringing together their Convention delegates to discuss and draft some kind of constitutional draft text. Cooperation between MEP’s and MP’s along the lines of the political families demonstrates the importance attached to the Convention from national parties. However, it also entailed the risk that national party leaders of parties in government attempt to control the interparliamentary process, and try to make the MP’s in the Convention work along their national government lines. The Convention worked in three phases: a „listening phase/ phase d’écoute“ in the plenary, a „study phase/ phase d’étude“ characterised by work groups and a closing editorial phase – the „reflection phase/ phase de réflexion“ for the elaboration of the Constitutional Treaty. The aim of the first phase was to strengthen reciprocal understanding of the positions of the various members, and to identify the projects for reform which the Convention should take forward. The relatively unspecific exchange of thoughts that resulted was criticised as long-winded and aimless by many members. Only with hindsight did a large number of members identify the phase d’écoute as a suitable instrument for creating empathy, and claimed to have learnt a lot – something that proved useful in the later elaboration of the Constitutional Treaty (Teufel, 2002; Würmeling, 2001). The exchange of thoughts was positive in two respects: Firstly, the position papers concentrated less on concrete reform projects und proposed articles, and more on general guidelines around which further EU integration projects could be oriented. Secondly, the plenary had a chance to inform itself of the multifarious opinions about the aims, values and principles of EU-integration, many of which remained open-ended. The numbers and heterogeneity of the cooperating actors and the prompt publication of all contributions, speeches and protocols on the Convention’s website coupled with the novelty of the negotiating situation (Zimbardo/Leippe, 1991: 31) to create an atmosphere without clear divisions and coalitions, but from which the strands of the future debate could be drawn. A quantitative analysis of the plenary’s contributions in this first phase shows that the focus laid on the discussion of competences, the character and desirability of a Constitution and the Charter of Fundamental Rights. Unity was achieved on these issues shortly after the beginning of the Convention. The bulk of contributions clearly came from representatives from the EU-15. Parliamentary contributions – be they from the EP or national Parliaments – outweighed contributions from representatives of governments or other institutions. The initial Presidium skeleton draft for a constitutional text of 28 October 2002 took up the most important points from the plenary discussions and adopted proposals which were capable of achieving consensus. Yet it also con-

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tained proposals like the one for a Congress of the peoples of Europe, which was expressly refused by the overwhelming majority of Convention members. Whilst these pronunciations were still going on within the plenary, a new working method took over with the beginning of the study phase. The key ingredient for this second phase was the approximately eleven working groups, which dealt with different themes. The most important difference to the plenary was the working atmosphere. Working in smaller groups and relatively closeted from outside attention, their readiness to examine others‘ arguments and to allow themselves to be convinced grew. Alongside the size of the groups and the segmentation of the plenary into thematic groups, an important function of the working groups was to encourage a focussing on thematic roles amongst the actors. Unlike in the plenary, not only were new actors attached to the working groups but certain actors were also „excluded“. This was because Convention members could not take part in different working groups simultaneously (CONV 52/02). For this reason only a portion of the national governments or the parliaments were represented in a working group at any one time. Thanks to this exclusionary mechanism it became clear during the work phase of the Convention that decision-taking would not follow the rules of intergovernmental bargaining. Apart from the basic principles which were accepted in all working groups, it was possible for some to adopt innovative and practical solutions which sometimes deviated from the participants‘ original intentions. This kind of practical, open working method was particularly in evidence during the development of the so-called early warning system, which was designed to involve national Parliaments more closely in the legislative process. At the beginning of the Convention there had been a wealth of proposals on the subject, ranging from a third parliamentary chamber, via the double membership of parliamentarians in national and European parliaments to the creation of a committee on subsidiarity. At the beginning of the consultation phase in the working groups there was recognition of three basic principles: National parliaments were to be involved in the legislative process, the creation of new institutions was to be avoided and this new involvement should not hold up the legislative process. On this basis, the innovative process of an early warning system was drawn up (CONV 286/02). The early warning system foresees that the Commission will transmit legislative proposals direct to the national parliaments. The parliaments then have six weeks to adopt a position on whether the proposal breaks the principle of subsidiarity. The positions communicated to the Commission will then be counted and weighed up. Should a third or – in the case of judicial cooperation in criminal matters or police

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cooperation – a quarter of the chambers adopt a negative position, the Commission would have to reconsider the proposal. It can then withdraw the proposal, change it accordingly or retain it in its original form but with a valid justification. After this ‚first reading‘, the Commission transmits the reconsidered proposal according to the normal procedures to the EP and Council. National parliaments retain the right to bring a legislative act before the European Court of Justice on the grounds that it infringes the principle of subsidiarity, in this case they are represented by their government though (Maurer/Becker, 2004; Maurer/Kietz, 2005). The introduction of a clear hierarchy of norms was also due to the intensive and practical methods of the working groups (European Parliament 2002; Arnauld, 2003; Maurer 2003). Since the Convention had no stand-alone group dealing with the reform of the institutions and processes, the only point from which to illuminate the tangle of processes and types of act was the group on the „simplification of procedures and instruments“. This group dealt first with the qualification of the individual EC/EU instruments. The discussion in the working group was far less controversial than had been expected for such a central question. In the end, the group was able to reach a broad consensus on every aspect of its mandate. A hierarchisation of legal acts should lead to the greater separation of legislative and executive acts. With a new category of ‚delegated legal acts‘ the legislature – the Parliament and Council of Ministers – should be able to delegate the technical aspects of a legal act to the executive. The working group thus suggested a three-fold differentiation of legal acts: A first group would consist of legislative acts, which would be used to regulate most provisions in the individual policy-areas and would usually be employed following co-decision. A second group of delegated acts would be used to substantiate legislative acts and as a rule would be adopted by the Commission. The Convention’s potential for innovation was borne witness to by the suggestion that control over the exercise of this competence would be exercised by the legislature – EP and Council of Ministers. For this purpose a ‚right of call-back‘ and a ‚period of tacit approval‘ for the Council and EP were proposed (CONV 424/02). A third type of act – implementing acts – was suggested by the members of the Convention. These were designed for the administrative implementation of legislative and delegated acts as well as for acts which are directly foreseen by the Treaty. Alongside this hierarchisation the working group aimed to reduce the number of legislative acts to a maximum of five types.2 To prevent this reduction from un2

For an analysis of the five instruments in Art. 249 TEC see European Convention: Submissions from Piris, Jean-Claude (WD 06); Secretariat of the Convention (WD 13). For various suggestions see Maij-Weggen, Hanja (WD18); Voggenhuber, Johannes (WD 26).

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dermining the efficiency and flexibility of the legal acts, the working group suggested three legally binding acts (laws, framework laws3 and decisions) and two types of legal acts which were ‚only‘ politically binding (recommendations and opinions). These instruments were to be employed within their existing ambit of the EC Treaty as well as for judicial cooperation in criminal matters and police cooperation. However, the particularities of the acts employed in the area of foreign and security policy should be maintained, according to the working group. Lastly, the group suggested that as part of a simplification of the decision-making process that co-decision should become „the general rule for the adoption of legislative acts“.4 Even on the subject of the simplification of the budgetary decision-making process the group was able to agree to a whole raft of simplifications. The existing budgetary process (Art. 268-271 TEC) were to be replaced with a simplified form of co-decision (CONV 424/02). Coupled with this, a series of Treaty changes made sometimes considerable incursions into the competences of the EU: The clarification of the differences between obligatory and non-obligatory spending; a clear separation of the EP’s and Council’s responsibilities, with the Council retaining its hegemony on matters of income; the Parliament to have final say over expenditure; the creation of a new legal basis for mid-term financial planning. In most working groups considerable successes were notched up.5 Among these successes may be counted the removal of the pillar system, the introduction of a single legal personality, the adoption of co-decision as the standard legislative procedure, the creation of a double-hatted Foreign Minister as well as the inclusion of the Charter of Fundamental Rights as a binding text. These successes are even sweeter when one considers that they had been dealt with fruitlessly at previous IGCs. With the release of the first draft articles by the Presidium, a third phase began – the editorial phase or phase de réflexion. During this phase, the consensual results of the previous phase were to be translated into concrete articles and the question of institutional reform which had not yet been properly dealt with, was now to be tackled. National divisions, which before had been all but absent, now began to play a greater role in this more concrete consultation phase. Moreover, the governmental representatives began to buttress their central role. The change 3 4 5

For terminological conformity see European Convention: Working Group meeting 24.10.2003, Doc. No. CONV372/02; (WD 13); Maij-Weggen, Hanja (WD 18). See European Convention: Final Report, Doc. Nr. CONV 424/02; Secretariat of the Convention (WD 13); Muscardini, Cristiana (WD 17); Maij-Weggen, Hanja (WD 18); Roche, Dick (WD 25). One exception was the working group on economic governance.

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of communication and consultation style was evidenced by coalition-building on the part of national governments outside the Convention. The resulting bi- and multilateral initiatives began to flow into the Convention.6 This new outside influence was only problematic for the work of the Convention insofar as it reduced the governmental representatives‘ margin for manoeuvre. The previously open and discursive style which had characterised the opening phases of the Convention was now implicitly put in question. These bi- and multi-lateral initiatives simultaneously meant that the Head of State and Government -or rather their representatives- gained a key role within the Convention. The previously consensus-oriented working style of the Convention now increasingly resembled that of an IGC. National axes became ever more pronounced. The Convention’s mutation into a kind of pre-IGC was particularly clear when issues such as the creation of a full-time President of the European Council, the reform of the decision-making process in the Council and the reform of the Commission were discussed. In these cases there was open conflict between larger and smaller countries. The growing dominance of the government representatives, which was played out in the media, automatically reduced the role of the „new Convention players“.

3.2.2.1 The European Parliament and the Convention Process Under the conditions of the Treaty of Nice, the European Parliament’s formal powers to amend the fundamentals of the EU were still limited: Only the member states, as the ‚masters of the Treaties‘, are empowered to amend these fundamentals. Alongside the right to consultation, the EP enjoyed the possibility to take part passively at the Intergovernmental Conferences as an observer. Despite this rather shallow role, the Parliament did not allow its project of a European Constitutional Treaty to be derailed. The Parliament’s success in this regard depended in large part upon the good will of the delegations of the member state governments. These were able to adopt parliamentarians‘ proposals and bring them up in the Conferences. Via this circuitous root the Parliament appears to have been very successful. In the run-up of the 2002/2004 Convention/IGC-process, the Parliament laid particular stress upon (Scelo, 2002; Schunz, 2005): 6

See the Common Franco-German Initiative on Institutional Reform (CONV 489/03), the relevant Hispano-British Proposal (CONV 591/03), the Memorandum of the Benelux states (CONV 457/02) as well as the initiatives of many smaller states, which should be understood as a response to the first two initiatives (CONV 646/03).

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the creation of a normative hierarchy for a universal classification of individual policy areas, the decision-making processes derived from them and the organs empowered to take those decisions, ● the introduction of a power of parliamentary consent for every amendment to the founding Treaties, ● the extension of co-decision to every legislative area, ● the application of co-decision to the adoption of the EU‘s budgetary plan and the discharge of the financial regulation applicable to the general budget, ● the fusion of the European Union and the European Community to create a single legal personality, ● the further development of the provisions contained in the Treaties relating to the Parliament, and ● the elaboration of a catalogue of fundamental rights for the EU organs. To lend weight to its demands for its upgrade to the position of co-legislator with the Council, the Parliament grappled first of all with the legislative function of the Council. According to a clear majority of parliamentarians the Council should be structured as a semi-parliamentary chamber of states. It is in this context that the Parliament’s Report and Resolution on the Council advocated a stronger role for „General Affairs Council“. This latter body should gain stronger co-ordinatory functions vis a vis the other Council formations and in future comprise the government figures most closely involved, under the authority of their head of government, in the co-ordination of national policies, rather than, as a matter of principle, the foreign ministers (European Parliament, 1999). Following this Resolution, the EP reinforced its conception that, in order to be able to co-ordinate and give political guidance to Coreper the General Affairs Council must meet more regularly, preferably every week (European Parliament, 2001). The frequency of the meetings demanded by this kind of system of co-ordination could be introduced within the framework of the Council’s implied powers. Yet the limits of this ‚soft‘ change quickly became apparent, since most member states do not have a minister who could deal exclusively with European policy at such frequent intervals. The Parliament thus consistently argued for the General Affairs Council to consist of ministers delegated by the national governments exercising a co-ordinating role within the governments and wielding the necessary political authority (European Parliament, 2001). These two Own-Initiative Reports and Resolutions constitute milestones in the EP’s system-development work. Up until that point, the parliamentarians had not publicly expressed an opinion about the internal organisation of the Council, nor had it submit proposals for its reform. The fact that the Parliament now – after Maastricht, Amsterdam and Nice – presented plans for a reorganisation of the

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Council as well as for the reform of governments‘ powers of self-organisation reflects two trends which have grown in recent years: Firstly, a weighty group of parliamentarians has shown that it is no longer satisfied with making proposals for reform which essentially consist of a ‚navelgazing‘ exercise limited to their own institution and its position in the EU system. Since the development of relations between Parliament and Commission can be driven through without Treaty change, and depend more upon the goodwill of the parties than on rules anchored in the Treaties, the parliamentarians are turning the focus of their attention to the web of relations between EP and Council. Secondly, the Resolutions clarify the EP’s belief that the institutional and procedural reform of the fundamentals of the EU depend not just on fine-tuning the relations between Parliament and Commission, but also on a radical overhaul of the Council system. This indirect interference in the Council’s implied powers was facilitated by the reforms made to the Council system in recent years by the European Council. The Resolutions met with tacit acceptance in the capitals of Europe. Yet the discussion between the heads of state and government led to an actual encroachment on the Parliament’s implied powers, since the reorganisation of the Council formations and the creation of an independent legislative programme had repercussions for the legislative work of the Parliament and its traditional role in legislative planning.

3.2.2.2 The European Parliament’s Strategies for the Convention and the IGC In its first Resolution on the Nice Treaty, the Parliament underlined that the method of intergovernmental bargaining once again applied in the European Council appeared unable to form a more democratic EU with a greater capacity to act. Particular focuses of the criticism included the decision-making process in Council, the thresholds agreed for qualified majority voting as well as the limited extension of its use, and the negligible extension of co-decision. After the completion of discussions in the Constitutional Affairs Committee, the Parliament made clear that the process of creating a political union, which had begun at Maastricht, was not yet complete. In order to meet the deficits and lacunae that it identified, the Parliament called for a decision-taking process in Treaty reform along the lines of, and with a similar mandate to, the Convention that drew up the Charter of Fundamental Rights. The new Constitutional Convention should begin work at the beginning of 2002, in order to put forward a draft Constitution (European Parliament, 2001a). The Intergovernmental Conference would then adopt the

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Constitutional Treaty in December 2003 and give a certain political impulse to the European elections of 2004. The EP thrashed out its conception of the summoning and tasks of the Convention with representatives of national parliaments particularly within the framework of the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC) (Maurer, 2004). New actors were involved in the Convention’s decision-making process. Representatives of the Commission, of national parliaments and the European Parliament as well as a category of persons, who were assigned by the Heads of State and Governments without necessarily being attached to Ministries, brought new aspects to the consultation process thanks to their different institutional backgrounds. The greater heterogeneity of the whole group made the use of traditional methods of negotiation, which revolve around national positions, far more complicated. This was the case for at least as long as the new actors helped mould the discussion process. The beginnings of the Convention, its working groups and the first phase of drawing up the Constitutional Treaty were marked by strong, para-parliamentary characteristics until April 2003. Members of the national parliaments and the EP came together in meetings of the Parliament and European parties, in order to elaborate responses to the questions inherent in the Convention’s mandate which had been drawn up at Laeken.

3.2.2.3 The Representatives of the European Parliament The delegation of the European Parliament perceived itself as the representative of the institution that sent them, much more so than did the national parliamentarians. This meant that the European Parliament assumed a large proportion of the work of the Convention and introduced various proposals via its delegation. In relation to the Convention plenary, the majority of the representatives of the European Parliament performed a collective ideational role. The positions adopted in plenary sessions by the Parliament on issues such as the legal personality of the EU (European Parliament 2002a), the role of the national parliaments in the EU (European Parliament 2002b), on the division of competences (European Parliament 2002c), and on the hierarchy of norms (European Parliament 2002d), were used as definitive points of reference in the Convention working groups and plenary sessions. Even the publication of impulses from the Heads of State and Government which were directly linked to the work of the Convention were sometimes ‚cited‘ less than the decisions of the European Parliament. The circle

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of European parliamentarians around the Parliament‘s Constitutional Affairs Committee grew; the contributions emanating from the Parliament also enjoyed a greater authority than those produced by the Convention Presidium and its secretariat. This gain in authority was also grounded in the structural advantages of European parliamentarians‘ membership of the Convention: They could fall back on personal and financial support from an institution ‚on the spot‘. Further, the European parliamentarians were used to the modus operandi of the negotiating committees, in which solutions were sought on a party-political basis, but also across partisan lines or specifically within committees. The European parliamentarians were thus the only Convention cohort to enjoy institutionalised and functioning work-structures to help with the preparation for Convention meetings. Within the Parliament, the groups’ motions from the European Socialist, as well as the European Peoples Party groupings were a focus for activity. Members of national parliaments behaved, by contrast, in different ways. National parliamentarians particularly from the Benelux states, Sweden, Lithuania, Latvia, Slovakia and Malta often threw their weight behind amendments from the representatives of their national governments. Parliamentarians from Portugal and Estonia made joint amendments. Many national parliamentarians also signed the motions made by groupings from the European Parliament. Some members of the Presidium were even ready with amendments, giving rise to assumptions about the relative fragility of the cohesion of the Convention’s highest committee. An important part of this „driving force“ was the readiness and commitment of the members of the Convention – and in particular the EP representatives – to formulate and present their contributions, proposals and later their proposed amendments to the Constitutional Treaty not as lone intellectuals but rather in concert with other members of the Convention. Only three members of the European Parliament remained hostile to the Constitutional Treaty – Bonde (Dk), Kirkhope (UK) and Muscardini (I). Alternatively, some parliamentarians proved themselves to be dedicated networkers. Of these networkers, Brok (D), and Voggenhuber (A) were particularly active, whilst Haensch (D), McAvan (UK) and Marinho (P) were rather passive coalition members. MEPs‘ gains in authority and influence were rooted in the structural benefits which they enjoyed as members of the Convention: Unlike the representatives of the national parliaments, and of the heads of state and government, MEPs work within an institution furnished with personal and financial resources. Further, the vast majority of its members are accustomed to the mechanisms of – what Weber termed – a ‚working parliament‘, in which most decision-making is based on the search for common solutions between committees, fractions and party political groups. The MEPs were thus the only cohort at the Convention to enjoy long-in-

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stitutionalised and functioning work-structures in their preparations for the Convention meetings. In its attempts to preserve the parliamentary element in the Convention, as well as to ensure its system-development role throughout the course of the Convention, the Parliament was dependent upon decisions that were taken outside its immediate area of influence. The growing influence of the Parliament actually lived off „the Convention taking on the independence that is characteristic of every sovereign process of constitutionalisation: [...] The Convention, and not the subsequent Intergovernmental Conference, should be the driving force behind the constitutionalisation of the European Union“ [this author’s translation] (Duff, 2003: 4). In other words: The influence of the Parliament depended largely on the definition of the Convention‘s role in relation to the Intergovernmental Conference. If a large group of its members would have decided from the offing to simply present a range of reform options and to leave it to the Intergovernmental Conference to reach positions on the new Treaty that were capable of gaining consensus, the Parliament’s influence would have remained marginal. The Parliament’s relative gain in influence at the system-development stage of the Convention process, could have been reversed by the IGC, if the heads of state and government would have treated the Convention’s result as an important point of reference – but nevertheless one of several – in their agenda for the Conference. The Parliament could have of course politically defy the relativisation of the Convention results; but the MEPs would only gain real influence over the IGC, if they won over an overwhelming majority of the Convention members from the national parliaments, the Commission and at least a section of the representatives of the heads of state and government. This option was possible, because the Parliament did not exploit its structural advantages in the Convention at the expense of potential allies. It is worth retaining, though, that the Convention procedure favoured the system-development role of the Parliament more than does the traditional IGC process.

3.2.3 The Para-Convention’s Exercise through Interparliamentary Cooperation The Convention considered the role of national parliaments with regard to the further development of the EU’s para-constitutional nature and the very process towards the IGC in 2004. The participation of national parliaments and of the European Parliament in the body responsible for drawing up the Charter of Fundamental Rights of the Union was an original experience, which opened the way for a true innovation with regard to the role of parliaments in the development of

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the EU. Hence, the Charter exercise symbolised the recognition of shared responsibility in the exercise of some kind of ‘para-constituent power’, which had hitherto been reserved for governments alone. The European Parliament and the COSAC Stockholm meeting in May 2001 thus proposed the activation of the Convention process. The idea was not only to parliamentarise the classical way of Treaty reform through IGC’s, but also to find an essential and visible forum for discussing the future roles of parliamentary democracy in the enlarged Union. Remember that already during the Amsterdam IGC negotiations, the national delegations of France, the United Kingdom and Denmark tabled concrete proposals calling for a strengthened role of national parliaments in the EC/EU decisionmaking process. Given the strong reluctance of the majority of the member states’ parliaments and governments as well as of the EU institutions, the idea of institutionalizing COSAC seemed unlikely to perpetuate interparliamentary co-operation. The mainstream argument against such an increased role held that the further institutionalization of COSAC would have had the contradictory effect of distorting the democratic foundations for the legitimization of parliamentary control and law-making activities in the EU. The Amsterdam IGC then led to the insertion of the “Protocol on the role of National Parliaments in the European Union” (PNP) into Treaty. Besides the provisions on the improvement of unilateral parliamentary scrutiny mechanisms, the PNP also recognized COSAC as the main contribution for a more effective participation of national parliaments in EC and EU Affairs. Given these early experiences of parliaments in creating their own fora for interparliamentary debate, the 2002/2003 Convention could be seen as a move towards assigning to the national parliaments and the European Parliament a specific kind of joint ‘para-constituent power’, i.e. a power to be shared with the national governments. This development marked a new chapter in the role of parliaments in European integration. Of course, to build on the Convention and to give national parliaments access to the policy process of the European Union level made the process dependent on the veto of the single unit. However, the Convention clearly mirrored a rather cooperative working style of both the EP and the national parliament’s delegates.

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Contributions to the Convention on the Future of the European Union (until 31 July 2002) Numbers in brackets include contributions produced for working groups Secretariat Presidium Unilateral

52 (75)

In Percent 16,9 (15,7)

EP

COM

Government

45

15 (29)

1 (8)

13 (41)

14,7

4,9 (6,0)

0,3 (1,6)

4,2 (8,6)

National NGO’s and Parliament others 31 (66)

142 (155)

10,1 (13,8) 46,4 (32,5)

Bilateral

5

2

5

In Percent

1,6

0,6

1,6

Compared with the Charter’s Convention, the national parliament’s group was by far the most active delegation among the four institutional ‘core groups’. Moreover, MEP’s and MP’s produced more multilateral contributions than during the first exercise. Whereas the government representatives were most active in the two working groups which consider substantial issues on the EU’s future competencies, national parliamentarians focused on two themes: the principle of subsidiarity and the definition of an early-warning mechanism in order to ensure the respect of the principle, and the future role of national parliaments in the EU’s institutional set-up. According to the vast majority of working group members, both the subsidiarity and the national parliaments themes attracted the two levels of parliamentary democracy to an original extent: Hence, both groups considered themselves as open fora with an original chance, that of clarifying and visualising the relationship between parliaments on the national and the European level. The idea of self-governance thus emerged within the two working groups as well as within the parallel sequences of the COSAC working group on the future of the EU and the institutionalised contacts on the level of party families.

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Contributions to the 2002 Convention’s Working groups (unit 31 July 2002) Working group on

Subsidiarity Charter

Legal Personality

National Parliaments

Complementary competences

Economic governance

Sum

Documents submitted by

Chair

7

9

7

8

8

12

51

Secretariat

6

2

4

3

3

5

23

1

2

9

14

11

5

10

35

2

23

28

European Parliament National Parliaments

2 3

Governments

4

2

3

Others

2

1

1

3

2

11

20

Sum

18

21

14

24

22

70

169

Hence, one of the most prominent tasks of the Convention was the intensive debate about the right attribution of roles and functions of parliaments in the EU’s multi-level set-up. The realisation of a multi-dimensional net of interparliamentary contacts was identified as a means to effectively reduce the democratic deficit in institutional – parliamentary – terms. However, the Convention members had to bear in mind that the new institutional mechanics are not self-evident for the end-users of public policy outcomes: The Convention was not reflecting whether the improvements made to new forms of parliamentary participation would provide new ground for enhancing the legitimacy and proximity of European governance towards the citizens of the Union. However, it remained in the hands of the actors involved to offer appropriate means for the involvement of the Union’s Demoi in shaping the conditions for their way of living. More precisely, during the ratification process of the DCT national parliaments face the difficult task to prove that they are able and willing to provide channels for communication across the boundaries of the EU’s member states. Any greater i.e. de-facto-institutionalised involvement of national parliaments in the EU’s policy cycles may help to render governments more accountable for what they decide in the Council of Ministers and its subordinated working mechanisms. However, the simple formalisation of COSAC, the creation of a congress or any other joint body incorporating MEP’s and MP’s within the realm of a new Treaty or constitution also renders the EU more complex and less understandable.

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4. Conclusions: System Change beyond the Convention The Conventions mark another step forward in the move of the EU from an economic problem-solving arena to an original polity. However, even after the 2002/ 2003 Convention, the institutional and procedural arrangements of the EU are likely to remain complex, fragmented and opaque. Thus, it will remain up to the implementation of the DCT and up to the actors then involved, to offer appropriate means for the involvement of the Union’s Demoi in shaping the conditions for their way of living. The Conventions can be seen as a new method that could strengthen the legitimacy of the European political system. Compared with IGC’s, the Convention method clearly features a much wider range of actors involved in identifying the common basis for transnational and supranational governance. The activation of the system-development function of national parliamentarians had positive effects. Instead of being restricted to simply rubberstamp results agreed upon on the level of governments, they were enabled to take ownership of the "Community process" (Deloche-Gaudez 2001, 45). The Convention method could be used in future for other purposes, such as the reform of the EURATOM treaty, new enlargement rounds and other para-constitutional issues. The theory of deliberative democracy highlights the equality and symmetry of actors as an underlying norm for participation; all participants should have the same chances to initiate speech acts, to question, to interrogate, and to open debate. Moreover, all participants should have the right to question the assigned topics of the conversation at any time; and all have the right to initiate reflexive arguments about the very rules of the discourse procedure and the way in which they are applied and carried out: “There are no prima facie rules limiting the agenda of the conversation, or the identity of the participants, as long as any excluded person or group can justifiably show that they are relevantly affected by the proposed norm under question.” (Mouffe 2000, 86). Clearly, both Conventions did not fully meet these criteria. Hence, both exercises featured a predominance of the Presidium, a secretive steering by the Secretariat and some kind of ‘open debate under the European Council’s sword of Damocles’. Of course, the Convention remains in the hands of the heads of state and government. However, if both the national parliaments and the EP want to give the Convention method a more independent role, they do have all opportunities in their hands to draft the relevant constitutional provisions in a reform of the DCT. Some doubted that the Convention method is really able to transform interest conflicts in a deliberative way. The Convention method also featured a non-ability to deal with power-struggles between member states’ interests. There are three reasons for explaining the Convention’s handicap:

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a) Debates on the constitutional architecture of the EU’s institutions are to a large degree zero-sum games – powers given to one institution have to be taken from others. This hinders progress in the deliberative search for a solution which would captivate each participating unit of the Convention. b) Constitutional engineers do not know what kind of implications certain institutional reforms will have. c) Behind the facade of deliberative discourse lies the struggle of conflicting interests and strategic preferences. Given their affiliation to institutions and institutional interests, the ‘Conventionels’ are biased and prejudiced. They do not act as independent arguers but as rent-seeking representatives of their constituent units. The Convention was dealing extensively with the EU’s democratic deficit as well as with the issue of institutional reform and power. Of course, neither the Nice treaty’s declaration on the future of the European Union nor the Laeken European Council’s Convention mandate did expressively use the notion of the democratic deficit or of the search for a reformed balance of power. But the vast majority of the post-Nice-process’ thematic contributions directly addressed the issue of democracy, democratic values, the democratisation of the EU’s institutions and procedures through the lens of power and the representativity of aggregated interests. Declaration No. 23 on the future of the Union annexed to the Nice Treaty, only stated four topics to be placed at the centre for the actual Convention: (a.) The establishment and monitoring of a more precise delimitation of powers between the European Union and the Member States, (b.) the status of the Charter of Fundamental Rights of the European Union, (c.) the a simplification of the Treaties with a view to making them clearer and better understood without changing their meaning, and (d.) the role of national parliaments in the European architecture. One could have imagined a much broader theme such as ‘means for democratising the EU’ in general, or ‘the role of parliamentary democracy in an enlarged Union’. The reason for the declaration’s focus on one level of the EU’s system i.e. the national parliaments and their contribution to EU democracy is to be found in the debate during the “printemps constitutionnel” of 2000: Joschka Fischer, Jacques Chirac and Tony Blair7 refreshed a debate (Joerges/Mény/Weiler 2000), 7

See Fischer, Joschka: ‘Vom Staatenbund zur Föderation - Gedanken über die Finalität der europäischen Integration’, in: Integration, No. 3/2000, pp. 149-156; Chirac, Jacques: ‘Notre Europe’, Speech before the German Bundestag, 27 June 2000, http://www.elysee.fr; Blair, Tony, Speech at the House of Commons, 11 December 2000, http://www.fco.gov.uk/news/newstext.asp?4489.

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which already started during the Maastricht IGC on how to link the European Parliament and the national legislatures into a continuous process of compounded problem-solving beyond the nation-state. The Nice declaration’s topics thus only mirror a rather disordered set of views on the general theme of ‘democratisation’, which were not clearly defined by the Heads of State and Government among themselves and which diverge – between governments and within the Convention – with regard to a) the optimisation of the EU’s institutional architecture in order to make the political system more efficient, democratic and transparent, b) the calibration of the checks-and-balances between the institutions which proclaim to represent the EU’s citizenry, states, regions, parts of society etc., c) the vertical relationship between the EU’s and its Member States’ legal empowerments to act, d) the set-up of institutional rules to guarantee more transparency of the EU’s decision-making process, and e) the definition of citizens’ rights against the EU’s power centres. Overall thus, the post-Nice-process – including the Convention – raised the question what could be understood by democracy in a political system like the European Union and whether the European Union could be democratised by modified institutional and constitutional rules. Based on the shared understanding that different views and interpretation of ‘democracy’ can not simply be resolved by another IGC bargain, the Convention was established to steer more empathy between its members with regard to the lasting differences between national, supranational, parliamentarian and governmental approaches to resolve the democratic deficit: In this regard, and even if the Convention did not explicitly create a working group on ‘democracy’, on ‘democratising the EU’s institutional structure’, or on “institutional reform and the balance of power”, each of the existing working groups addressed central issues with regard to the democratic nature of the EU’s system. And instead of directly – and naively – concentrating on the parliamentary side of the democratic deficit, the Convention decided to debate on a more open-minded reform with regard to the reconciliation between the obvious need to enhance the EU’s problem-solving capacity on the one hand and the requirement to democratise the resulting opportunity structures for its institutions on the other. Citizens do not vote on the ground of highly aggregated institutional settings; they are interested in outcomes and in arguments, legal empowerments and policy programmes which reflect their wishes, interests, worries and concerns. In this regard, the Convention’s working groups on the Charter of Fundamental Rights, on Complementary Competencies, on Economic Governance, on the EU’s External Action and Defence, on Free-

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dom, Security and Justice, and on Social Europe largely focused on the EU’s output legitimacy and thus reflected the continuous search for problem-solving capacities in specific policy areas without explicitly considering the mode of appropriate governance structures. And in contrast to negotiations on similar subjects at the level of IGC’s, the recommendations of the working groups were drafted by a large consensus of its members.

5. The Convention was a Deliberative Process … and a Deliberative Sequence However, the EU’s development does not only feature an increasing and dynamic quest for effective policy production, but also an ongoing search for efficient, transparent and democratic ‘frames’, which enable policy outcomes to be perceived and accepted as legitimate. To successfully reconcile the management of growing responsibilities with the demands for the participation of the political actors involved, new institutions will be established and the already existing institutional framework will be altered. This is the very task of institutional reform. The Convention has extensively considered these issues. Even prior to the FrancoGerman initiative on institutional reform, the Convention’s plenary and its working groups dealt with the role of national parliaments, the future powers and functions of the European Parliament, the extension of the scope of the codecision procedure, the extension of the scope of application of qualified majority voting, and the future means to hold the EU’s executive branches (the European Council, some of the Council formats, and the Commission) more accountable. As regards the applicability of the theory on deliberative democracy and the method used in the Convention, we can conclude: 1. The theory expects that the participating actors are free, they are only bound by the results of the deliberation and they supposedly can act on the results. As regards the Convention, one could identify three groups of actors: A minority who tried to act as representatives of the ‘national interest’, i.e. some (not all) of the representatives of the heads of states and governments; a minority of national parliamentarians who did act on their own behalf without considering eventual positions of their home bases; a large majority of members who tried to cope with different layers of their identity as MP’s/MEP’s, government officials etc. and who changed their positions several times according to an ongoing and open debate on the EU’s future design. 2. The theory expects that deliberation is reasoned, no force is exercised except that of the better argument. Hence, the Convention did not feature any means

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of coercion or majoritarian decisionism. Instead, the debate within both the working groups and the Convention plenary remained open-minded and egalitarian. Representatives of larger member states or government officials did not tend to argue on the basis of their potential bargaining power. Only the last months of the Convention, and the “official” debate on institutional reform was marked by elements of national interests, vetoing and bargaining. Hence, the final weeks of the Convention were some kind of a pre-IGCbridge. 3. The style of the Convention’s debate was arguing between individual ‘normmirrors’ with the object for each of the participating parties to raise empathy for each other and their problems, arguments and proposed achievements. The Convention wanted to present a complete draft Constitution at the European Council meeting in Thessaloniki. However, given the amount of time remaining in June 2003, it was likely that the European Council would only approve the first and second part of the draft. The Convention was then given another three weeks to finalise the third and fourth part of the DCT. With its then 342 articles, this part represented the essential bridge between the DCT’s first part addressing the basic principles of the European Union and the fourth part dealing with rules governing the approval and amendment processes and areas of jurisdiction. The Intergovernmental Conference was not expected to begin until after Latvia’s referendum on joining the EU. That meant the IGC could only begin after September 20, 2003 at the earliest. At the preceding meeting in Thessaloniki on June 19–20, 2003, the European Council could have agreed on an official mandate for the IGC. But since some of the smaller EU states strongly favoured taking a break to allow for more intensive debate in national parliaments on the results of the Convention and the Convention itself took more time to work on the third part of the Constitution, it was clear that the heads of state and government would not decide on the future proceedings of the IGC until during the Italian presidency. As a consequence, it was very doubtful that the overall Convention-IGC process would go smoothly and would enable the IGC to wrap up the work of the Convention in celebration, as was the case with the Charter on Fundamental Rights. The “second reading” of the DCT’s text only began on May 30–31, 2003. Given how those involved started to defend their positions on institutional reform since then, it was also clear that the majority of Convention participants were in favour of putting off the IGC. At the end of May 2003, a group of smaller and bigger states joined forces in their rejection of the Franco-German proposal on institutional reform presented in January 2003 as a possible compromise between the intergovernmental and community methods. The gov-

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ernment representatives of Ireland, Denmark, Poland, Austria, Lithuania, Cyprus, Sweden, Spain and Great Britain spoke out clearly against changing the rules for reforming the institutions that were agreed on in the Treaty of Nice. They also stressed that the outcome of the Convention would simply be regarded as a starting point and should not be understood as a basically unchangeable basis for the IGC. The position of these states made it clear that the Franco-German approach of trying to capture the entire spectrum of interests on European integration in bilateral proposals had reached its limit with regard to the question of institutional power. But the growing amount of groups of states who joined the Convention’s end-game from outside by addressing their common fears and veto-positions should not be interpreted as a failure of the Convention method. Hence, the Convention was never seen as the end of a process, but as a culmination within a process which could only be finalised after the last vote has been counted during the ratification process of the DCT. In this regard, the last weeks of the Convention were an unprecedented exercise for constructing a bridge between the deliberative elements and the decision-making phase of the EU’s system development cycles. The central reform of the Convention was the participation of national parliaments and the European Parliament in the reforming the EU’s treaties. It was this kind of parliamentarisation which enabled the substitution of the classic intergovernmental negotiation patterns through a style directed on consensus. The essential condition for a success of the Convention method was its composition and the resulting interest constellations and negotiation procedures. First the composition of the Convention eased the free and open minded discussion as well as the identification of relatively innovative elements for reform. The partial infiltration of the representation monopoly of governments in international negotiations led to the creation of new and flexible coalitions. The new method helped to pre-empt national governments representatives to exclusively present pre-determined national positions. Secondly the distribution of the convention’s work between the plenary and the working groups enabled a departure of traditional bargaining-processes. Especially the working groups were marked by a shared perspective of consensus and open-minded deliberation working styles. The prerequisites for this kind of debate were given especially in the second working phase. In the last phase, the specific deliberation style of the Convention became extensively relativized. The reason for this was twofold: ● First, the increasing condensation of the remaining reform questions towards institutional reform and power issues. ● Second, the increasing mobilization of national government resources and veto potentials vis-à-vis the Convention.

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The development away of the consensual Convention method and back to the classic pattern of the IGC and bargaining was unavoidable because institutional reforms entail automatically a variation of the power balance between the EU-institutions and between the member states. The persuasive power and relative strength of the Convention method can be defined by its function to delimit the paths and corridors for the IGC’s end games. Hence, compared to the Convention’s DCT, the IGC did not conclude on radical setbacks. The changes brought to the Convention proposals in the area of institutional reform show the boundary of the Convention method: Issues of power can not be solved through a process without mandates. The distribution of power needs to be settled by actors that are fully legitimized to arrange sovereignty transfers. As long as the EU is not perceived as a – federal – state, in these questions, there is no way out of the IGC as well as of the decision mode of unanimity.

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The Dynamics of the Two-Level Process of Constitution Building Setting the Agenda by Agenda Setting Thomas König1

1. Analyzing European Constitution Building On 18 June 2004, the governmental delegates of the 25 member state adopted the text for a European constitution. The original text has been prepared by the 207 members and 13 observers of the Laeken Convention, of which only 66 had the right to vote on the final document. Members with the right to vote included the President Valérie Giscard d’Estaing and the two Vice-Presidents of the Convention, 15 delegates of the member state governments (one from each country), 30 representatives of the national parliaments (two from each member state), 16 members of the European Parliament, and two officials from the Commission. The representatives of 13 accession countries (one government representative and two delegates of the national parliament from each country) were not entitled to vote but were invited to discuss and participate in the negotiations. After one year of hectic and intense debates these delegates of the Laeken Convention accepted a draft text on a constitutional treaty on 13 June 2003 which found support of all 25 member states in a modestly revised version. The French and Dutch electorate voted against the constitutional project in Spring 2005, but the question remains how to explain the survival of the Laeken proposal in light of previous attempts to reform the EU’s obsolete institutional framework which failed at the Amsterdam (1997) and Nice (2000) IGC among 15 member states. One answer is that the convention is a new method for drafting institutional solutions of a widening and deepening European Union (EU), which opened membership for ten countries from Eastern and Southern Europe in May 2004. This accession of relatively poor countries certainly increased the need for institutional reform, which finally led to constitutional debate induced by the conventional method which effectively set the agenda for the Brussels intergovernmental 1

German University of Administrative Sciences Speyer; [email protected].

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conference. On closer inspection we find that the Laeken presidency set the agenda of the Convention, which subsequently set the agenda for the Brussels summit. Analysing this double agenda-setting process raises a number of questions about the principle agent-problem of delegating actors to IGC and Convention negotiations and about the difference between (previous) one-shot IGC marathon negotiations and the conventional method. More generally, it might be questionable whether the tools and approaches of political analysis can improve our understanding of this complex situation of a two-level multi-stage constitution-building process, or whether it is better to emphasize the unique nature of this process in terms of a constructivist description. Before providing some answers, I start with outlining two major approaches of political analysis on the process of EU constitution building. First, I argue that EU integration causes an inherent principle agent-problem, in which delegates’ concerns for national/organizational interest are subordinate to personal interests. If the two coincide, then so much the better; if they do not, then delegates will choose what they believe to be best for themselves. To analyze the principal-agent problem in constitution building we need measures of the positions of the actors involved. This inherent principle agent-problem does rarely threaten ‘normal’ outcomes of one-shot marathon negotiations, which need no specific ratification process. In most cases, international treaties are negotiated and ratified by governmental majorities. However, since the Maastricht treaty, changes in the design of the EU’s framework need increasingly higher (parliamentary) ratification in the domestic arena because they change the domestic constitutions and therefore directly affect the interests of the principles.2 In this regard, the conventional method tried to bring together the different type of actors which decide about the constitution at several stages. In addition to governmental delegates, the Laeken delegates were parliamentarians or delegates from second chambers which have to ratify the constitutional text. The conventional method should thus decrease the risk of involuntary defection by considering the preferences of the principles and agents. However, the conventional method also empowered actors with strong agendasetting function increasing the risk of failure in a dynamic multi-stage process. In view of this principle agent-problem, I secondly believe that two level game analysis can provide further insight into this complex process. The somehow paradoxical conclusion is that the Laeken Convention – and in particular the presidency – had more discretionary power in the enlarged EU to set the agenda for constitution building but the more it used this agenda setting power, the more like2

These hurdles vary among member states between simple parliamentary majorities and bicameral qualified majorities as well as referenda.

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ly ratification will fail. Without using the conventional method, however, efforts to redesign the institutional framework had failed due to conflicts between large and smaller, rich and poorer countries, more and less integrationists member states. More generally, we can conjecture that the more diverse the interests of member states are – whether they differ in terms of size, wealth or political backgrounds –, the less likely it is to find support for policy change and reform in oneshot IGC negotiations (Tsebelis 1995, 2002). For this reason, previous IGCs had to postpone institutional reform and only revised treaties on the lowest common denominator (Gray/Stubb 2001). Furthermore, their outcomes sometimes failed to receive sufficient approval in the domestic arena, such as in the Irish referendum on the Nice treaty (2001). Using the method of one-shot IGC marathon negotiations, the enlarging of the EU significantly would have reduced the potential for policy change because the heterogeneity of member states’ interests increased by the accession of relatively poor and small countries most coming from the former Soviet bloc (König/ Bräuninger 2004). In other words, because the differences among member states in terms of size, wealth and political backgrounds increased, it would have beeen impossible to accept a reform proposal. However, in situation of large divergence between the member states, the discretionary power of an agenda setter increases too (Tsebelis/ Garrett 2001). The agenda setter can make a pareto-improving proposal that cannot be changed by the member states in subsequent IGC negotiations. Using the tools of game theory we can easily see that the conventional method may not only have provided more information about the positions of the actors involved in this process – whether these actors had to adopt the draft at the following IGC or must ratify it in the domestic arena. It also increased the set of options for constitutional reform in an enlarged EU.

2. Two-level Games and the Constitution Building Process The current process of constitution building raises a number of questions about the nature of decision making, the goals and strategies of the actors involved, and the outcome in terms of a constitution (or not). The point of view expressed here consists of the following principles: 1) The actions the delegated actors take to influence the outcome are motivated by the desire to stay in office. 2) EU constitution building cannot be separated from domestic politics, and choices are undertaken in the shadow of the domestic political consequences the action is expected to produce. 3) Outcomes result from strategic interactions, which means that choices are taken with an eye toward the reaction they will create. In this

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world of political analysis, constitution building is primarily about the choices and actions that delegated actors take in the name of their nation/organization to influence how their nation/organization will be related to the other actors in the future. Their relations are accordingly motivated by delegates’ preferences for certain goals over other goals. These preferences are tempered by the power to pursue those goals and by the information about the costs and benefits associated with seeking out one goal over another. In addition to their own preferences, power and perceptions the delegates must also consider the actors of their domestic arena. Before the French and Dutch ‘No’ to the constitutional text in Spring 2005, the lack in the knowledge of the preferences, power and perceptions of the actors of the domestic arena had already caused significant problems for previous attempts to reform the framework, originally developed by the six founding members in the late 1950s. The Irish referendum almost stopped the coming into fore of the Nice treaty in 2001, and the Danish and French referenda almost failed to provide sufficient support for the Maastricht treaty in 1991. Because ratification hurdles for EU treaties are often higher than government formation itself, the risk for involuntary defection raised with the number of actors involved. Apart from the debate on the democratic/parliamentary deficit, the increasing “threat” of referenda and importance of ratification procedures, the debate on the democratic/parliamentary deficit also promoted the inclusion of parliamentary delegates in the deliberations of the Laeken Convention. Compared to the governmental exercise of IGC negotiations, political parties became part of the early stage of constitution building process – a major innovation by the conventional method. Political parties had thus to reveal their preferences in order to influence the outcome of a draft text. They provided this information on their positions to the governmental delegates which finally negotiated the constitutional text. The importance of the knowledge of the domestic actors’ positions can easily shown when considering the multi-stage process in terms of outcomes at time t0 for the following stages at time t+1, such as the impact of the Laeken draft on the IGC, which has adopted a slightly modified text one year later. And the next step to take is the ratification stage in all member states, which raises concerns about a possible failure due to a particular outcome adopted at earlier stages which has to overcome the high ratification hurdles in the domestic arena. Today we know that about ten countries will set up a referendum, while others require qualified majorities in parliament – sometimes a 4/5 majority or a bicameral 2/3 majority in both chambers. Of course, this multi-stage process had already started before – some scholars may argue that European integration is a history of treaty revisions (Moravcsik 1998). This historical wisdom is obviously true, and when we analyze the current constitution building process, in particular the Nice treaty is a decisive

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starting point because it defines the status quo: If the Laeken Convention or the IGC would have failed to adopt a proposal, or if ratification will fail in one of the member states, the Nice treaty will maintain as the existing framework for the legal basis of European integration. In this respect, we conceive the constitutional text as a proposal to modify the status quo as defined by the Nice treaty, and the Laeken Convention is a method to promote such policy change.


   



      
          





  

 


   

Figure 1 spatially illustrates the basic elements of the process of constitution building from the Laeken proposal to ratification in a simplified manner. This picture is the simplified starting point for political analysis, which has to consider multiple stages and the effect of an increased EU by accession. In order to outline the dynamic effect of this process, two options for a draft text are compared, namely a coherent proposal as favored by the Laeken presidency, and a wish list with multiple alternatives to reform the EU. The Laeken presidency exercised an agenda setter-function within the agenda setting process of the Laeken Convention because it organized the deliberations by establishing a committee system of working groups and prepared the agenda of these groups. The most obvious intervention of the Laeken presidency was the setting of the time-table, which started with a listening phase, followed by a study phase and ended with an drafting phase. Until the final weeks, the presidency also excluded the topic of institutional reform from the agenda, and members could only discuss reform with reference

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to other topics and outside the sessions. In the end, on overwhelming majority of the Convention’s delegates accepted a more cohesive draft after hectic and intensive debates on 13 June 2003 which consolidates all previous treaties into a single document. To illustrate the pros and cons of the presidency’s strategy and the actors’ positions on this reform are located in a two-dimensional policy space, the vertical axis referring to the level of integration, the horizontal to the level of regulation. Without loss of generality, one could replace these dimensions by more specific topics of reform issues in our empirical analysis, such as the voting rule in the Council and the number of Commissioners. For convenience, illustrate five signatories having diverse positions on both the level of integration and regulation, i.e. actor 1 and actor 4 have the largest mutual distance with respect to the level of regulation but they almost share their view on the level of integration. In gametheoretical terms, every actor is goal-oriented and tries to achieve an outcome closest to his most preferred position, and distance between outcome and most preferred position means a loss of utility. Suppose that both options have to fulfil the consensus criterion for signing them, which means that they must be located within the core of the five signatories.3 This core is indicated by the area within the lines connecting the five signatories. The coherent proposal is located almost in the center of the signatories, the wish list offers negotiation leeway. Fulfilling the consensus criterion, the presidency’s coherent proposal, even if slightly modified on a few issues, is thus likely to pass the IGC as long as it is located in the core of the actors. However, before coming into force, this proposal has still to be ratified in the domestic arena, i.e. in the arena of signatory 1 by ratifying three actors 1a to 1c. According to this scenario, even though the presidency’s coherent proposal is likely to find IGC acceptance, the wish list is more likely to survive domestic ratification because it will find sufficient support of either the core of ratifyers (if the status quo is not known, the triangle core of domestic actors still strives the wish list boarder) or of the qualified majority of ratifyer 1a and 1b (if the status quo is located at the null point of both dimensions). This simplified example already tells us how important the knowledge on domestic actors’ policy positions is for the study of multi-stage processes. As long as the signatories act by consensus, the proposal has to be ratified in the domestic arena of all signatories before coming into force. The high ratification hurdles beg 3

The core is a game-theoretical concept which allows to identify a set of outcomes because every outcome outside the core will move in the core due to the smaller distance to all actors involved. However, all outcomes within the core are also stable because any change would be blocked due to increasing the distance of at least one actor.

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the risk that at least some domestic opposition actors do not support the negotiation outcome of the IGC. In the end, a less ambitious wish list might have higher chances to come into force than a coherent draft text, which risks defection in the domestic arena. Knowing the positions of the actors of the domestic arena might accordingly change the delegates’ perspective on the “nature” of the constitutional draft. If they are supportive for a constitutional solution, a less cohesive text might increase the chances for successful constitution building, while a more coherent proposal begs higher risks to fail in the domestic arena. But why did the Laeken delegates then accept the more coherent proposal? Unfortunately, we can only speculate whether delegates are supportive for constitution building or whether they are interested in an increasing risk of failure when voting for a more coherent proposal. But why using the convention method for constitution building and why did the signatories abstain from including parliamentary actors before? Suppose that the five signatories in Figure 1 are complemented by two new signatories which have more divergent interests regarding the level of integration and of regulation (located outside the core of the original five). This enlargement implies an expansion of the size of the core which means that reform among the signatories is unlikely as long as the Nice treaty is located in the core of the five original signatories (which is very likely because we saw that every outcome will move in the core). However, increasing the size of the core of member states also increases the discretionary power of agenda setters. The agenda setter can make proposals within the area of the core which cannot be changed by unanimity. This means that the power of an agenda setter increases when the heterogeneity of the member states has increased by enlargement. Unlike the one-shot negotiation method of previous reform attempts that is likely to fail due to enlargement, the success for the agenda-setting method of drafting a solution increased. The agenda setter must only acknowledge that the proposal is located within the (increased) core because member states are unable to amend it under consensus rule. Conceiving the drafting of a constitutional text as an agenda setter-function, the Laeken convention could propose changes without risking of being overruled by member state unanimity. As long as the positions of the governmental delegates and their domestic ratifyers coincide, the conventional method is an effective instrument for making proposals of institutional reform even in an enlarged EU.

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3. Delegation, Strategies and Collective Actors Another feature of this process refers to the principal agent-problem which is inherent for the two-level nature of European integration. At the several stages of constitution building, national governments and parliaments send their delegates in order to negotiate texts in accordance with their respective goals and positions on specific reform issues. Although member states might agree on their goal of European integration, or even on constitution building, they mostly have diverging positions on specific reform issues, such as the number of Commissioners to be sent from a country, the distribution of voting weights in the Council, the inclusion of a foreign military policy, the mentioning of God in the preamble etc. These issues at stake determine the policy space of constitutional reform and are the incentives for negotiations among the signatories, previously the governments of the member states, nowadays including the Commission and the European Parliament. Because institutional redesign requires consensus among the signatories, a reasonable assumption is that every signatory only accepts reform when expecting an improvement against the status quo (which means against the Nice treaty). This does not mean that every signatory must expect to improve against the status quo of every issue. It rather offers quid-pro-quo package deals, side-payments etc. in order to offer mutually beneficial expectations for all signatories. In some cases, however, signatories may have different expectations on policy change because a treaty revision defines the rules of the future policy games, such as the distribution of voting weights etc. for EU legislative decision making. In fact, signatories cannot foresee all ingredients of the future legislative decision making but they will have expectations how future coalition building in the Council will change under another distribution of the voting weights. Insofar, whether they, correctly or falsely, expect being in the future minority or majority coalition, will influence the forming of their position on a change of the voting rule, respectively taking together all reform issues, their willingness to adopt a reform text. This does not mean that signatories do not change their positions for strategic purposes, the collective nature of signatories or due to delegation problems. The strategic formulation and change of positions is a well-known phenomenon in political analysis but may raise a principal agent-problem that risks failure of the reform attempt in a multi-stage process. In general, success and failure of strategic behaviour depend on the credibility of threats and promises. In the two-level game literature, a credible threat of a negotiator is defection of the negotiated outcome by domestic constraints (Putnam 1988). The basic idea is that negotiators/signatories commonly agree on policy change, but there exist a number of (winning)

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alternatives how to change the status quo. These alternatives define the winset of the status quo, and signatories have still to select one (winning) alternative out of several for changing the status quo. Empirical analyses of European treaty revisions showed that small countries with high domestic constrains were particularly successful in theses negotiations (Hug/König 2002, König/Slapin 2004). Schelling (1960) has called this phenomenon the “Paradox of Weakness”, whereby those countries are more effective in international negotiations which can credibly argue that they need more accommodation in order to overcome their high constrains at home. Another reason for changing positions is the collective nature of signatories. At the time of the Nice treaty, for example, ten of the fifteen member states had governments built on coalitions, several of which included more than two parties. Others had a minority government, and all counties have ratification hurdles for EU treaties that are higher than those of government formation itself. The support of additional (partisan) actors is also necessary when constitutional requirements of qualified majorities exist for the parliamentary ratification of a treaty. During the Nice negotiations and ratification process more than half of the member states, namely eight out of fifteen, had constitutional requirements for treaty ratification under qualified majorities ranging from 3/5 to 2/3 of the votes. Others, such as Belgium, France, Germany and the United Kingdom needed bicameral approval with the additional support of a partisan actor represented in the government, and Ireland had to pass a referendum. The members of the collective signatories oftentimes change their views, in particular when they do not belong to the government coalition. While the negotiating government must often defend the EU proposal, opposition actors can criticize the suboptimal outcome for the respective country. In the case of constitution building the most visible change of positions came from governmental change in Spain, and to some extent in Poland. These events facilitated the adoption of the constitutional text under the Irish Presidency. Regarding disagreement between principal and agent, delegation always begs the risk that the positions, ideas and goals of the delegate do not coincide with those of the principal. Even if the principal is aware of this risk and imposes restrictions and rules to control the delegate, the latter has oftentimes informational advantages vis-à-vis the principal. Note that member state governments have established quite different procedures how to coordinate a national position on a European text (Stoiber 2004). But only the delegate knows the positions of the other delegates and reports their negotiation configuration to the principal. Biased information, whether biased from misperception or for strategic purposes, can have important impact for the goals and strategies of the principal in this process. Involuntary defection can result from biased information because principals reject a

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text which has been negotiated by their delegates. A prominent recent example might be the Irish referendum of the Nice treaty, almost threatening a treaty revision which opened the ways for the accession of applicant countries from Eastern and Southern Europe. Identifying the inherent principal agent-problem and analyzing the process of European constitution building thus requires measuring the positions of the actors involved.

4. Studying the Process of European Constitution Building In the project on Domestic Structures and European Integration (DOSEI) we are studying the multi-stage nature of the constitution building process in the European Union by using a dynamic two-level-analysis framework.4 Considering the domestic and the European level, we examine the dynamics of constitution building by focusing on the agenda-setting stage of the Laeken Convention, the preparatory stage of domestic inter-ministerial coordination, the negotiation stage at the IGC concluded in 2004, and ratification in all member states. We wish to answer two main questions: How is the process of European constitution building carried out? How can we explain the outcome of this dynamic two-level game process? DOSEI documents this multi-stage constitution-building process by systematically gathering data on the positions of key political actors at the European and domestic level. These actors are the delegates of the Laeken Convention, the European Commission, the European Parliament, the domestic ministries and political parties, the governmental delegates at theIGC and the public opinion in all member and accession countries. For this purpose, we use a number of instruments, such as expert surveys, document analysis and public opinion polls. The multi-pronged data gathering strategy will allow us to have reliable information on constitution building, and to assess the multi-stage two-level character of interministerial coordination, IGC negotiations and domestic ratification. Figure 2 illustrates our research design on the positions of actors involved in the constitution building process. 4

DOSEI is coordinated by Professor Dr. Thomas König at the University of Administrative Sciences Speyer, and involves the following researchers: Professor Michael Laver, Professor Kenneth Benoit, and Raj Chari (Trinity College, Dublin), Professor Simon Hix (London School of Economics), Professor George Pagoulatos (Athens University of Economics and Business), Professor George Tsebelis (University of California, Los Angeles), Professor Han Dorussen (University of Essex), Professor Madeleine Hosli (Universiteit Leiden), Professor Paul Pennings (Vrije Universiteit Amsterdam), Professor Christophe Crombez (Katholieke Universiteit Leuven), Professor Simon Hug (Universität St. Gallen).

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The Laeken Convention consisted of delegates from member states and accession countries.5 The representatives of the 13 accession countries (from each country one representative of its government and two of the national parliament) had no voting right but were invited to discuss and participate in the deliberations (Article 6, Working Methods of the Convention). The composition of the Laeken Convention reflected the type of actors and institutions which take a decisive vote in the following stages of constitution building, namely the member state governments at the IGC and the national parliaments in the event of ratification. The intention to reveal information on actors’ positions of the following stages of the constitution building process is also indicated by the inclusion of the delegates from accession countries because the Laeken Convention concluded its work before the ten newcomers acceded in May 2004. These delegates were part of the negotiations of the draft text, which was adopted after intense debates on 13 June 2003. Although the composition of the Laeken Convention supports the view of an information gathering strategy to include the positions of actors involved in the further constitution building process, it is another question why and how the delegates adopted a rather coherent proposal. The Laeken European Council held in December 2001 convoked a convention only to propose suggestions on how to change the institutional framework, notably with respect to the power distribution 5

We conducted with interviews on 23 key reform issues, and by replacing missing members with alternates, our data cover 84.5% of all Laeken delegations. For the governments of member states, the response rate is 88.9%, and for the accession country governments 79.5%. 92.9% of the countries include one answer from a governmental and a parliamentarian delegate, which means that we have the two institutional positions from all 15 member states, and from 84.6% of the accession countries. Furthermore, we cover 50% of the Commission’s positions, and 81.2% of the positions of the European Parliament, including members from all political parties. Observers were excluded because they had voting right neither during the convention nor in the further stages of constitution building.

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in the EU, the simplification of the treaties, the role of national parliaments in the enlarged EU, and the need to increase legitimacy and transparency. The President of the Laeken Council, Valéry Giscard d’Estaing, inaugurated the Convention on 28 February 2002. During the first, ’listening’ phase, which continued until summer 2002, the members of the Convention presented their views about the future of the EU (Maurer, 2003, 28). From September until March 2003, the presidency pursued the second, or so-called ‘study’ phase of the Convention. Specific issues were discussed and the presidency established a working group system for their preparation. In Spring 2003, the last and decisive phase of the Convention began, the so-called ‘drafting’ period. Several times, the presidency was able to promote its positions, and after hectic debates, the presidency convinced an overwhelming majority of the Convention to accept a rather coherent draft for a constitutional treaty. Instead of providing a wish list for the upcoming IGC, the draft proposes to simplify the complicated voting procedure of the Nice treaty, introducing a ‘double’ majority, according to which a simple majority of member states representing at least threefifths of the EU population can adopt legislative initiatives. It also excluded a notion on Christianity – an issue that was intensely discussed in some member states with respect to own catholic traditions and the threat of the accession of Turkey. Large states favoured the provisions of the draft proposal, while small member states stood in strong opposition to it. Spain and Portugal, in particular, which had benefited greatly from the Nice treaty, were afraid of having a reduced influence on EU decision making (Cameron 2004). Germany and France in particular, warned other member states to open the package and to renegotiate the Convention’s draft at the IGC, while others signalled their willingness to reject the proposal in this case. These events suggest that the Laeken presidency exercised a powerful agendasetting function during the Laeken deliberations. Such an agenda setting function is particularly strong under closed rule because it excludes re-negotiating or amending the draft. Under such conditions, actors can only decide to adopt or reject a proposal which intends to modify the status quo. This means that the power of the agenda setter is a function of the distance between the draft and the status quo because actors will support a change of the status quo as long as the draft promises an improvement. However, the member states did not intend to establish such a powerful agenda setter. The Nice annex only refers to stimulate discussion about institutional reform, the Laeken presidency interpreted its role as the founding fathers of a European constitution. Under the presidency of Valérie Giscard d’Estaing, the organization of the constitutional deliberations promoted the views of the presidency which announced early on to prefer a straightforward constitu-

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tional proposal. Overall, the tight schedule of the Laeken deliberations, the division into listening, study and drafting period as well as the exclusion of debates on institutional issues raise the impression that the presidency used the arsenal of institutional provisions to draft a proposal which was close to its own views about a coherent proposal. But how did the member states react on this proposal? About one week after the adoption of the text by the Convention, Giscard d’Estaing presented the draft to the European Council in Thessaloniki. The European Council called the text a good working basis for the following IGC, which decided about the adoption of a constitution for Europe (Financial Times, June 21st 2003; Thessaloniki Council Presidency Conclusions). At this Summit, a majority of governments praised the final text as a good compromise, and Germany cautioned not to renegotiate the draft. However, a number of member states called the finality of the Laeken text into question and announced their willingness to renegotiate several provisions at the Brussels IGC in December 2003. In the meantime, the draft text was discussed in the domestic arena of the member states and accession countries as well as in the Commission and European Parliament.6 These debates resemble inter-ministerial coordination, in which either the Foreign Minister or the Prime Minister’s office took the lead in order to form the government’s national positions on the draft text for the following IGC. In most countries, only ministerial offices were invited to discuss the national positions and parliaments were rarely involved in this process. Only few Scandinavian countries invited representatives from the public or parliament, in some federal states regional representatives were included. A typical example is Germany where a taskforce has been set up when Foreign Minister (MFA) Joschka Fischer became the government’s delegate to the Laeken Convention in October 2002. This task force was affiliated with the office of Secretary of State Hans-Martin Bury, Fischer’s alternate in the Convention. Bury acted concurrently as chairman of the inter-ministerial committee of State Secretaries which met about once a month and involved the Office of the Chancellor and several ministries, most frequently the Ministries of Finance, Interior and Justice (for legal advice). The Chancellor’s Office and the MFA played the most active role during the whole process. The government also tried to integrate 6

We conducted interviews on the key reform issues in all 15 member states and 10 accessions countries plus Commission and European Parliament. For this purpose we interviewed 2 to 5 experts per country from in- and outside government, in particular from the offices in charge for inter-ministerial coordination in the period between September to December 2003. The data includes estimators for the national position and for all relevant actors which were involved in domestic coordination of the national positions on the draft text. Only 1.4% remain missing values on actors’ positions.

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the states’ position in anticipation of the Bundesrat’s veto power during the ratification process. In Finland, as a typical example for the Scandinavian countries, domestic coordination has been characterized by a inclusive decentralized organization with the government, the Grand Committee of the parliament and the convention delegates: The Prime Ministers Office set the agenda for the institutional affairs section where all 13 ministries are represented as well as representatives from the Aaland Islands. Issues discussed at this level were forwarded to the Cabinet Committee on EU Affairs which met on a weekly basis, chaired by the Prime Minister. The Grand Committee of the Finnish parliament could modify the positions because Finnish constitution requires parliamentary approval before international negotiations are concluded (Tiilikainen 2004). After domestic coordination member states met in December 2003.7 At this time member state governments failed to reach an agreement, causing a delay in the constitutional process. A major issue of debate remained the voting rules in the Council of Ministers. While the Nice treaty is more favorable for the smaller member states at the expense of the EU’s capacity to act, the Laeken draft proposed a new voting procedure, which intended to abolish the voting weights. Changing the distribution of the voting weights for old and new member states8, the Nice Treaty has increased the voting threshold from 71.2 per cent to 73 per cent9 and added a population quota requiring the inclusion of at least 62 per cent of the EU population. As a compromise with smaller member states, the Nice voting scheme also requires a majority of member states to be in favour of the legislative proposal. The Laeken text simplifies the complicated procedure of the Nice 7

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In mid-December, we contacted the delegates of the intergovernmental conference to mention their positions on the key reform issues of the draft proposal. We received answers from all 25 country delegations as well as from the Commission and the European Parliament in this survey. The weights are: Germany (29), United Kingdom (29), France (29), Italy (29), Spain (27), Netherlands (13), Greece (12), Belgium (12), Portugal (12), Sweden (10), Austria (10), Denmark (7), Finland (7), Ireland (7), Luxembourg (4). The weights for accession countries are: Poland (27), Romania (14), Czech Republic (12), Hungary (12), Bulgaria (10), Slovakia (7), Lithuania (7), Latvia (4), Slovenia (4), Estonia (4), Cyprus (4), Malta (3). The Declaration on the qualified majority threshold and the number of votes for a blocking minority in an enlarged Union continues: „Insofar as all the candidate countries listed in the Declaration on the enlargement of the European Union have not yet acceded to the Union when the new vote weightings take effect (1 January 2005), the threshold for a qualified majority will move, according to the pace of accessions, from a percentage below the current one to a maximum of 73.4 per cent. When all the candidate countries mentioned above have acceded, the blocking minority, in a Union of 27, will be raised to 91 votes, and the qualified majority threshold resulting from the table given in the Declaration on enlargement of the European Union will be automatically adjusted accordingly.“

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Treaty, introducing a ‘double’ majority, according to which a simple majority of member states representing at least three-fifths of the EU population can adopt legislative initiatives.10 Large states favoured the provisions of the Laeken proposal, while small member states stood in strong opposition to it. Spain and Portugal, in particular, which had benefited greatly from the Nice provisions, were afraid of having a reduced influence on EU decision making (Cameron 2004). Large states were able to compensate smaller countries by modifying the appointment procedure of Commissioners. For small states the Laeken draft beg the risk to give up their right to appoint a Commissioner from their country but large countries offered them to keep their right to appoint one Commissioner. However, Spain and Poland would not have benefited from this deal and rejected to adopt the Laeken draft. Discussions continued for another six months, and, after changes in the composition of the Spanish and Polish governments, the Irish Presidency succeeded in reaching consensus on the most contested issues of voting rights and the number of Commissioners. On 18 June 2004, the governmental delegates of the 25 member state adopted the text for a European constitution, which still has to be ratified in the member states, and eight countries immediately announced that they will subject the constitution to a referendum (Economist 24.06.2004). The text is relatively modest to reform the framework of the EU, originally established by the six founding members in late 1950s. Applying a principal agent-perspective, our first findings reveal that the preferences of actors changed during the constitution building process. On the one hand, the convention method offered to gather information about the positions of actors which are involved in the subsequent stages of constitution building. This information helped to reduce the risk of involuntary defection, in particular for parliamentary ratification, even though it does not exclude strategic behavior. On the other side, The Laeken presidency has used its agenda setting power in order to promote a coherent proposal. Due to the diverging interests of the member states in an enlarged EU, the discretionary power of the agenda setter increased because member states were almost unable to amend the proposal under consensus rule. However, the coherent proposal begs higher risks in the ratification stage, in which the actors of the domestic arena – whether they are the political parties in the parliaments and second chambers or the public in referenda – must ratify the draft text. Today, we know that the coherent proposal did not survive the referenda in France and in the Netherlands. However, our analyses also 10 In cases where the Council is not acting on a proposal by the Commission or the Union Minister for Foreign Affairs, a qualified majority consists of two thirds of the member states, representing at least three fifths of the population.

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reveal that in countries holding referenda, the distances between principal and agent are lower. This suggests that referenda are a useful tool for reducing the principal agent-problem, while the conventional method can provide for change even in an enlarged EU. Thus, the adjustment of both instruments is perhaps decisive for the future of the constitution.

5. References Cameron, D. (2004), ‘The Stalemate in the Constitutional IGC over the Definition of a Qualified Majority’, European Union Politics 5, 373-391. Gray, M./ Stubb, A. (2001), ‘The Treaty of Nice – Negotiating a Poisoned Chalice?’, Journal of Common Market Studies 39, no. 1 (Supplement), 5-23. Hug, S./König, T. ( 2002), ‘In View of Ratification: Governmental Preferences and Domestic Constraints at the Amsterdam Intergovernmental Conference’, International Organization 56, no. 2, 447-476. König, T./ Bräuninger T. (2004), ‘Accession and Reform of the European Union. A Game-theoretical Analysis of Eastern Enlargement and the Constitutional Reform’, European Union Politics 5, no. 4, 419-439. König, T. /Slapin, J. (2004), ‘Bringing Parliaments Back in. The Sources of Power in the European Treaty Negotiations’, Journal of Theoretical Politics 16, no. 3, 357-394. Maurer, A./ Wessels, W. (2003), Das Europäische Parlament nach Amsterdam und Nizza: Akteur, Arena oder Alibi? Baden-Baden. Moravcsik, A.(1998), The Choice for Europe. Social Purpose & State Power From Messina to Maastricht. Ithaca. N. N. (2004), ‘A Deal on A New Constitution’, Economist, 24.06.2004. N.N. (2003), ‘Thessaloniki Council Presidency Conclusions’, Financial Times, 21.06. 2003. Putnam, R. D. (1988), ‘Diplomacy and Domestic Politics. The Logic of Two-level Games’, International Organization 42/1988, 427-60. Schelling, T. C. (1960), The Strategy of Conflict. Cambridge. Stoiber, M./ Thurner, P. W. (2004), ‚Die Ratifikation intergouvernementaler Verträge: Konstitutionelle Erfordernisse und akteursspezifische Agendakontrolle’, in: Pappi, F. U./ Riedel, E./ Thurner, P. W./ Vaubel, R. (Eds.): Die Institutionalisierung Internationaler Verhandlungen. Frankfurt/Main, 173-203. Tiilikainen, T. (2003), ‘Finland: Smooth Adaption to European Values and Institution’, in: Wessels, W. (Ed.), Fifteen into One? The European Union and its Member States, Manchester, 150-165 Tsebelis, G. (1995), ‘Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism und Multipartyism’, British Journal of Political Science 25, 289-325. Tsebelis, G. (2002), Veto Players: How Political Institutions Work. New York/ Princeton. Tsebelis, G./ Garrett, G. (2001), ‘The Institutional Foundations of Intergovernmentalism amd the Supranationalism in the European Union’, International Organization 55 , no. 2:357-39.

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Part II: The Making of a European Constitution: Influences and Perceptions

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The Impact of Constitutional Traditions on the EU-Reform Discourse in Austria, France, Germany and the UK Bruno Scholl1

1. Introduction The literature on the constitutionalisation of the European Union has so far largely focused on questions of whether the EU can at all have a constitution (Grimm 1995, Kirchhof 1987, Zippelius 1999), whether it should have a formal constitution (Piris 1999, Müller-Graff/Lenk 2002) or whether it already has a constitution anyway (Weiler 2003, Hobe 2003). Various attempts have been made to characterise the particularities of the European constitutional arrangement (Pernice 1999, Menéndez 2003, Walker 2002) and different forms of constitutionalism have been distinguished (Bellamy 2003, Wessels 2003). At the same time there are a variety of (mostly legal) studies on the influence of the European constitutional order on national constitutions (Schwarze 2000, de la Rochere/Pernice 2003). This – in political science terminology – ‘top-down-Europeanization’ approach (Risse/ Green Cowles/ Caporaso 2001) is not at all matched by an equally careful analysis of the bottom-up impact of domestic constitutional arrangements on the constitutionalisation process on the European level. Political scientists who have been concerned with the impact of broader concepts such as ‘normative polity ideas’ (Jachtenfuchs 2002, Parsons 2002) or ‘Leitbilder’ (Schneider 1977) on constitutional preferences have not given priority either to the importance of national constitutional traditions. Whereas the aim of this paper mainly is to contribute empirical findings to the described bottom up approach of European constitutionalism, it can also be placed in the political science literature on preference building (Katzenstein 1993, Legro 1996). More specifically the approach followed in the study can be regarded as a historical institutionalist interpretation of constructivist assumptions (Wagner 1999), presuming that preferences are not only determined by the search for influence, power, or economic welfare in the resulting institutional arrangement, but to a large extent by the cultural and traditional predispositions of the actors and 1

University of Cologne; [email protected].

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the established ways of doing things within national constitutional arrangements (for a similar approach and further literature, see Waever 2004). Starting from an analysis of the constitutional tradition of four selected EU countries the paper explores in how far these patterns have influenced the debates on the reform of the European Union. By constitutional tradition it is not only referred to the current constitutional arrangements. The historical evolution, the philosophical rationales and the way constitutions are interpreted in the political life of the respective countries have also been taken into account (for distinctions of various constitutional traditions, see Preuß 1994, Vorländer 1999). Therefore the analysis is not restrict to the instrumental character of constitutions but covers their symbolic functions in the constitutional cultures as well (Gebhard 1995). The choice of cases was largely influenced by the ‘most-different-system-design’ focussing on countries with very different constitutional traditions, political systems and which differ as well in their size and attitude towards European Integration (Landman 2000). France was selected because of its enduring constitutional history and its Unitarian structure of political order that in the constitution of the 5th republic followed a distinct model of semi-presidentialism. Germany builds the major counter part to France and the UK adhering to the constitutional tradition of federalism and a coalition government dominated form of parliamentary democracy. The UK is an exceptional case in standing outside the continental European constitutional tradition with its long and accepted history of constitutionalism without having one single written constitution. Austria finally was chosen because it combines federal and Unitarian elements and provides an example for small states in the EU. In order to centre on the genuine influence of these state traditions on the preferences voiced in the debate on the future of Europe and in the European Convention the period of analysis has been limited to the statements of national proponents before major compromises were strived for in the last phase of the European Convention’s work. Thus the question of how far national traditions are ‘bendable or transformable’ in this extraordinary institutional framework has not been systematically explored. Instead the paper shall illustrate the heavy historical baggage of domestic constitutional traditions that to a great extent framed the reform options for the evolving European polity. The findings strongly suggest that domestic constitutional and institutional structures serve as a major point of reference in the debates on the future of the European Union. Thereby two distinct mechanisms can be distinguished, namely the attempt to ‘upload’ national constitutional arrangements to the European level. This is true for Germany in particular and for France to a limited extent. However, in the case of the UK where such an uploading would contradict the national conception of sovereignty and patterns of

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democratic decision making the European reform options have been constructed in distinct ‘contrast’ to the domestic system. Generally the analysis of the reformdiscourse suggests that symbolic ‘resonance’ or ‘contrast’ seems to be of higher importance then instrumental correspondence. The paper will start by briefly highlighting the method of the comparative study and will then move to the main findings. Thereby it will concentrate on three aspects of national constitutional traditions and the way they have impacted on the European reform discourse, namely the question of national conceptions of sovereignty, the Executive-Legislative relationship and the issue of state organisation in terms of a unitary or federal government in the countries under study.

2. The Method: A Three Dimensional Research Design Building on the hypotheses that national constitutional traditions and practices do exercise some influence on the conception of reform options at the European level it was first necessary to review the respective national constitutional background of the four countries under study. In order to transcend pure black-letter law and to better grasp the constitutional tradition the historical and philosophical rationale behind the respective constitutional provisions is taken into consideration as well. Thus the analysis is not limited to a purely comparative constitutional analysis but puts emphasis on the historical background and political culture of the respective representative systems as well (for similar approaches, see Schwarze 2000, Rochere/Pernice 2003). In order to structure the comparative analysis of the respective national constitutional backgrounds a scheme of altogether seven categories was applied in the comparative analyses to enhance the comparability of the results: (1) the national conception of the principle of sovereignty, (2) executive legislative relation, (3) organisation of the legislative, (4) state organisation (5) constitutional change and judicial review, (6) national electoral system, (7) system of Central Banks (before EMU). Within each of the categories a number of more detailed questions was asked such as: ‘is the notion of sovereignty explicitly mentioned in the constitutions?’ or ‘which role do the constituent units (if existent) play within the state organisation’? […]. In a second step this dimension of analysis of the national constitutional background was extended by a second dimension – the national contributions to the EU reform discourse. On the basis of the Laeken Declaration a number of contentious issues was selected which should be addressed when analysing the contributions of national participants in the European reform dis-

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course. These issues have been grouped under six categories which are further detailed below: (1) Reorganisation of the treaties, (2) Institutional balance, (3) Role of National Parliaments, (4) Division of competences, (5) constitutional change / judicial review, (6) Set-up of economic policy. This adds up to a three dimensional research design taking the respective national constitutional tradition and practices as the starting point or ‘independent variable’ of the study and the contributions to the European reform discourse as the ‘dependent variable’ that have been studied with regard to selected topics of the debate. Dimensions of Analysis

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3. National Conceptions of Sovereignty and the Shape of a Future European Constitution The question of sovereignty is at the core of any discussion about the reform of the European Union. Any re-arrangement of the institutional structure or the competences of the European level will have a direct impact on the powers and the status of the national level. At the same time issues of sovereignty touch the very heart of historically evolved national self-conception and identity, since sovereignty used to be regarded as the sole characteristic of the nation state in modern times (Peters 2001). It is therefore necessary to take into account the particular historical experiences of the countries under study, which resulted in completely different notions of national sovereignty. In France the notion of sovereignty was theoretically developed in the 16th century by the royal legal expert Jean Bodin (1583). The pattern of a centralised independent state was later on even enhanced by the Jacobin tradition (Knapp/ Wright 2001). Since the French revolution the notion of sovereignty was constitutionally linked with the idea of a single united people organised within the one and indivisible republic. The constitutional assurance of this principle has been a cornerstone of any French constitution ever since. The current constitution of the Fifth Republic states that national sovereignty belongs to the people, and that the people may exercise it by its representatives (legislative body) or by itself (with a referendum, one of the most important elements brought by this constitution of 1958). This understanding, however, conflicts with the very idea of constitutionally uniting various countries and sharing sovereignty rights. Therefore it has been very difficult under the French constitution to formally transfer sovereignty rights to another level of governance and the evolvement of the European Union – especially in the 90s already necessitated a range of constitutional adaptations (Rideau 1998). In Britain national sovereignty has a similarly long, however less formalised tradition strongly associated with the insulated position of the country that has not seen formal foreign interference in domestic affairs for centuries (Beloff 1996). The most striking characteristic of the British notion of sovereignty is that in the absence of a written (codified) constitution, the Parliament is theoretically omnipotent and thus sovereign (Armstrong/Bulmer 2003). At the core this principle of ‘Parliamentary Sovereignty’ means that no other authority can pass laws for Great Britain or can overrule or alter laws, which Parliament has made (Dicey 1915, Craig 1999). Even though parliamentary sovereignty is an independent constitutional principle, it is definitely in full accordance with the general conception of national sovereignty in Britain. At the same time its im-

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portance is highly symbolic since its material validity can be questioned not at least since British accession to the EC and the European communities Act of 1972. Still, an orthodox reading of this principle would thus result in a situation in which even a formalised European constitution could not finally bind any future British parliament. Germany on the other hand has had a far less homogeneous tradition of sovereignty. Its history is characterised by sharp breaks and a very diverse shape of the country. The relationship between the concepts of ‘nation’ and ‘state’ is far less consolidated and the notion of national sovereignty had to be redefined several times (Schöllgen 1999). After World War II and the division of the German Reich, sovereignty was formally restricted by the allies and only gradually regained. Under these circumstances a notion of sovereignty was developed within the Federal Republic that allowed for the pooling of sovereignty rights on a supranational level as long as the basic democratic principles of the Grundgesetz were secured (Hesselberger 1996). Therefore the development of the European Union led to constitutional adaptations in order to guarantee the democratic control of German government’s positions on the European level, as more and more competences were transferred to the European level (Müller-Graff/Lenk 2002). In Austria a Provisional Government formally proclaimed the re-establishment of Austria as a democratic republic after the second world war. But the four occupying powers enacted a Control Agreement (Kontrollabkommen) whereby the Austrian government similar to Germany was only entitled to act under the instructions of the occupying powers concerned. Only since the State Treaty of 1955 Austria was re-established as a fully sovereign “democratic republic” with its legal order originating in the people” (see Art. 1 B-VG; Walter/Mayer 1996). For political debates about sovereignty the question of neutrality has played a key role since 1955. Neutrality was the precondition for Austria’s re-establishment as a sovereign state (Walter/Mayer 1996). In the 50s and 60s, however, neutrality was frequently seen as an impediment for sovereign national decisions on participation in international communities (Weber 1999). During the 70s, the governing Social-Democrats developed a more positive understanding of neutrality framing it as an active role of mediator in international relations. Since the Austrian notion of ‘Volkssouveränität’ meant that all legislative acts applicable in Austria require, as their ultimate basis, the will of the Austrian people, the decision to accede to the EU was taken (indirectly) in a referendum.2 The final ‘opening of the Austrian 2

Formally the referendum was about the question whether the decision on the complex instrument, including the Treaties, the Act of Accession and the Final act with numerous Protocols and Declarations.

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Constitution for the law of the EU and of the EC was then taken by the parliament’s acceptance of the Accession Enabling Act. These fundamentally different concepts of the principle of sovereignty, namely the French state sovereignty, the British parliamentary sovereignty and the notion of sovereignty of the people developed in Austria and Germany had a strong impact on the national contributions to the reform debates and led to sometimes very different conceptions of the nature and the institutional arrangements of a future European constitution. However, in the debate on the future of the European Union it was also possible to find common ground beyond the status quo of the current treaties.

3.1 The Creation of a Constitutional Document On a rather abstract level consensus has been possible in terms of the common aim to create a European constitutional document that should consist of a fundamentally simplified text in which the complicated pillar structure should be abolished and in which the new European Union should be given one single legal personality (Ferrero-Waldner 2001, DSF 2002, Lenoir 2002a, Pleuger 2002, Dashwood 2002). At least for the British government this has been a considerable shift (Dashwood 2002) from earlier positions that was strongly opposed by the Conservative Party (Heathcoat-Amory, plenary, 15.04.2002). However, the British government remained true to its constitutional tradition when emphasising that any European constitutional treaty must call upon the centrality of nation-state sovereignty which is ‘self-authenticating’ and which can only name competences delegated (derived) from the national level. Thereby it has to be stressed that from the perspective of the British constitutional tradition, the creation of a European constitution did not pose an obstacle in principle. Since the term ‘constitution’ within the British tradition is rather vaguely defined and does not have a straight connotation with the giving up of sovereignty in a state like entity (see for example Straw 2003). Only the material consequences of a possible EU constitution were regarded as threat to British sovereignty (Peters 2001). Similarly the notion of sovereignty was at the core of the French debate on the EU. Although Euro-enthusiasts like the former Minister of European affairs Alain Lammassoure suggest that the notion of sovereignty should now be given up (Lamassoure 2001) the conservative ‘souverainists’ can still rely on a general orientation within the French discourse that is grounded in the constitutional tradition of one and indivisible republic.

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In Germany the creation of one single text with the status of a constitution has been the object of a well established debate especially among constitutional lawyers. Whereas the constitutional quality of the treaties in a material sense is accepted even by the German Constitutional Court, the ability of the EU to have a formal constitution (Verfassungsfähigkeit) is hotly debated within scientific and judicial circles. The classical argument originating from the etatist German constitutional tradition in the 19th century (Peters 2001) is that only fully sovereign states, with its own people could have a formal constitution (Kirchhof 1987,§13 Rdnr. 1, Grimm 1995). This formalistic interpretation of sovereignty and statehood has been contested because of its negligence of the observable reality and on the basis of a changed concept of sovereignty (Schäuble 2000, Müller-Graff/Lenk 2002). Within the political debate in Germany, the question of a Constitution for Europe has not been contested at all. Politicians and officials of all parties have postulated the idea of a European constitution (SPD/Grüne 2002; Rau 2002, Schäuble/Bockelt 2001). Nevertheless the political enthusiasm for a ‘European Constitution’ remained a rhetorical shift within the debate since it was not contested that a ‘European Constitution’ would have to be designed as an international treaty signed and ratified by the member states, thus fully consistent with the traditional German interpretation (see constitutional drafts Brok 2002 and even Leinen 2002, Pleuger 2002). Thus debate on the creation of the constitutional documents reveals some common ground on the basis of the respective national tradition. The core notion of sovereign nation states has still been preserved even in the two federalist countries. Despite all the talks of a European constitution it has been consensus in all countries under study that the European Constitution is to be constructed as a treaty among nation states as well as among the peoples.

3.2 The Incorporation of the ‘Charter of Fundamental Rights’ As for the creation of a single Constitutional document the principal inclusion of the Charta of fundamental rights seemed to emerge as consensus as well in all countries under study (apart from the British Conservatives). According to the Austrian Foreign Minister the European Charter of Fundamental Rights should become “an integral, constitutional part of the EU Treaty arrangement.” (FerreroWaldner 2001, 5). In France the Charter was considered by the government and the opposition as an additional guarantee for the protection of citizen’s rights. Together with the European Convention of Human Rights should provide a common basis for the harmonisation of judiciary systems (Chirac 2002). Within the Ger-

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man debate virtually all participants agreed that the Charter should be integrated into a Constitution as it stands (Schäuble/Bocklet 2001, Bundesrat 2002, SPD/ Grüne 2002). It should thus gain binding quality associated with the right for individuals to appeal to the European Court of Justice as well (SPD/Grüne 2002, Bundesrat 2002). This full hearted welcome of the charter integrated into the constitutional document corresponds to the national or rather continental constitutional traditions in which formal declarations of human rights form a central part of the constitutional documents. The situation within the UK is rather different since the notion of a document that has prerogative over Parliament has been alien to the British constitutional tradition. Although Britain with the ‘Human Rights Act’ of 1998 has transposed the basic human rights of the European Convention of Human Rights into national law reservations remain with regard to the Charta of Fundamental Rights – especially provisions on social and economic rights. Regarding the possible consequences of these provisions on the UK, MPs argue it could render illegal a number of dispositions in Britain. Thus the British Government not only feared the change of constitutional tradition that would subordinate Parliament to supranational law it also suspected that the Charter would have direct policy effect (Hain, plenary 03.10.2002). Therefore it has been difficult within the British debate to agree that the Charter should have a legal status at all. Still, the UK Government has supported the integration of the Charter of Fundamental Rights into the constitutional treaty – however with important limitations. Peter Hain, the former Minister for Europe stated that it would be possible on the condition that it would not be enforceable in UK courts. As he pointed out. “I think the problem with the incorporation of the Charter of Fundamental Rights as it is presently constituted, just wholesale into the Treaty, is that it could – in fact would in our view – start to influence domestic law in a way that was never intended. In that form it is completely unacceptable to us” (Euractive, 18, 2002).

3.3 The Exit Clause Closely linked to the issue of national sovereignty, but less publicly debated has been the introduction of an exit clause in the Constitutional document. In the UK and France – consistent with their strong emphasis on national sovereignty – the exit clause has been regarded as the adequate assurance for the freedom of the member states. The UK government has therefore strongly supported the insertion of a provision for withdrawal from the EU in the Constitutional Treaty. The Draft Constitution presented by Alan Dashwood provided for a withdrawal procedure

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(Article 27) by which the member state in question should address to the Council its notice of intention to withdrawal. This view was also shared by the conservative opposition and even the integrationist Liberal Democrats support the inclusion of an exit clause and a provision allowing for temporary suspension of member states rights (Duff 2002, Art. 2.5). The consensus in Britain on the inclusion of an exit clause could also be interpreted as a safeguard of parliamentary sovereignty, since it provides opportunities for a situation in which Union law strongly conflicts with the position of the British Parliament. In France the question of an exit-clause in the EU treaty was debated, too. The socialist project has emphasises on the “voluntary” aspect of the EU (DSF, 2002). No Member State should have the right to stop the European process, or should be obliged to stay in the Union. However, the French government was less explicit with its support during the convention but supported in principle the article after it was introduced by the presidium of the Convention (Villepin, amendment to Art. 59). In Germany and Austria, on the other hand, where such a provision is unknown in the own federal constitution the secession clause was rarely publicly debated nor was such a provision regarded as necessary (Brok 2002 draft treaty). Therefore the representatives of both of the countries made it clear in their amendments to the Convention that such an article should be fully deleted (Fischer, Farnleitner, amendments to Art. 59).

4. Executive – Legislative Relationships and the Introduction of a Bicameral System? The organisation of checks and balances between the legislature and the executive in the countries under study differs to a great extent and the particular national patterns have substantially influenced the domestic debates on the institutional architecture of the future European Union. While Germany and the UK represent two models of a parliamentary system, France and Austria follow to a very different extent semi-presidential patterns in which one branch of the executive – the president – is directly elected by the people. In Britain, Parliament symbolises the continuity of the state and the constitution, and it is the arena in which the political ‘drama’ of government versus opposition is acted out. In addition to this symbolic and ritualistic roles, Parliament is considered as the residue of legitimacy and sovereignty (Armstrong/Bulmer 2003). The political executive, the Prime Minister led Cabinet, is recruited from, and accountable to the lower chamber of the Parliament, the House of Commons.

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It is the consent of the majority in Westminster that legitimises the government’s authority and converts its policy into law. The House of Lords thereby plays a largely consultative role, although its influence in certain policy fields – such as European affairs – can be substantial. Nevertheless, in practice the British government has a high degree of autonomy from Parliament. In this so-called Whitehall model, Parliament may debate and criticise, but any realistic analysis of how Britain is governed acknowledges that initiative on legislation and policy lies with the Cabinet (Peele 1995). In Germany the Bundestag represents the central democratic institution within the parliamentarian system of the Federal Republic. As the only federal institution which is directly elected by the people it claims an outstanding degree of democratic legitimacy and the executive is formally dependent on the consent of the House. However, as in other parliamentary democracies it is not fully adequate to make a clear cut separation between Government and Parliament. After the shift from a Presidential System of the Weimar Republic to a strictly Parliamentary Democracy one can rather detect a ‘new dualism’ between the Government formed by the majority ‘fraction(s)’ on the one hand and the parliamentary opposition on the other (Rudzio 2000). Still, the division is less clear cut than in the British parliamentary system because governments in the Federal Republic have most of the time been coalition governments. Additionally, the Bundesrat – which is formally not a second chamber within one parliament but consistent with the German federalist tradition the representation of the Länder-Governments on the federal level (Beyme 1999, Boldt 2003)- forces the government to a more co-operative style. Within the double headed executive only the Chancellor plays a powerful role while the functions of the indirectly elected President have been downgraded to largely symbolic and ‘reserve’ functions in the case of severe crises (Hesse/Ellwein 1997). The Government is led by the Federal Chancellor who has considerable power in relation to its Cabinet (Beyme 1999). France in the constitution of the Fifth Republic has introduced a semi-presidential system of government. Here the executive plays a pivotal role leaving the bi-cameral parliament only with a minor position in the political process (Duhamel 2000). The system is characterised by the double-headed executive with the powerful directly elected President who is responsible for core policies such as foreign policy or institutional matters (Knapp/Wright 2001). Because of his dominant position the French President within the 5th republic was even described as a “republican monarch” (Mény 1999 quoting Michel Debré). The Prime Minister on the other hand, who is elected by the Assemblé National, is the central policymaker in domestic affairs. He is in general in charge of the work of the government Art. 20), which includes the right to appoint and dismiss ministers, to make

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appointments of certain top ranking military and civil servant posts. The most important of his/her tasks is to ensure the overall coordination of government policy. Finally, the Austrian system of government takes up elements of different political systems and can also be regarded as a combination of parliamentary and presidential models. Similarly to the Weimar constitution and the constitution of the 5th French Republic the Austrian Federal President is directly elected for a period of six years and has considerable rights. Although he is the potentially powerful head of the state, the chief executive is the Federal Chancellor who leads the executive branch of government and dominates the political life. Furthermore the political system of Austria has been much more characterised by its particular party-politics arrangement and the so-called systems of ‘Proporz’ and ‘Sozialpartnerschaft’, than by the constitutional provisions (Pelinka 1997).

4.1 Design and Designation of the Executive These constitutional arrangements and the very different political cultures have had a strong impact on the various models of institutional reform brought forward in the European debate. Although virtually all participants in the discourse of the Convention adhered to the mantra of the ‘institutional balance’ that should be uphelt by strengthening all institutions at the same time the models brought forward showed how different the ‘institutional balance’ has apparently been perceived within various countries. The French debate on the relationship between the European institutions has been inspired to a great extent by the institutional design of the 5th Republic, especially with regard to the two-tiered executive (Haenel, plenary, 20.01.2003). The strong domestic position of the French president is thereby matched in the European reform debates by the call for a strong President of the European Union heading the European Council for a multi-annual period (Chirac 2002, DSF 2002). This fits as well into the French emphasis of national sovereignty that on the European level should be safeguarded by a strong intergovernmental representation of the heads of state and governments in the European Council. Nevertheless the European Commission remains of central importance and should be strengthened, by keeping its right of initiative in the de-pillarised constitutional treaty structure and by facilitating a more effective decision making process through the reduction of Commissioners (Jérome 2002, Villepin, plenary 21.01.2003). However, the French discourse is less homogenous on the role of the President of the Commission and the election of the double-headed executive. It is impor-

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tant to emphasise that the direct election of a European President as an analogy of the French system is not envisaged in any of the contribution and the pure parliamentarian election of the president of the Commission is not proposed either. Only after the acceptance of the French patterned double executive the French government agreed in the Franco German paper on a strengthened role of the EP in the election of the Commission President – a position that it had refused before (Fischer/de Villepin 2003, Vernet 2002). This again reflects the still predominantly intergouvernmental conception of the EU which is cautious against a too strong empowerment of the European Parliament. Instead a strengthening of the national Parliaments in the election process has played an important role in the French discourse on the institutional set-up. Various possibilities where brought forward to elect the Presidents of the Commission and the European Council, by the nationally legitimised heads of states (Chirac 2002), or by a congress composed of European and National Parliamentarians (Giscard d’Estaing 2002, Haenel 2002) There have even been calls to unite both of the positions which demonstrates that the French debate by no means is monolithic (Lequiller 2002a). The emphasis in the French debate on the creation of a European Council President found broad support in Britain as well. In the UK the politically most important position is clearly attributed to the President of the European Council who should be designated by the heads of states and governments (Hain, plenary, 20.02.2003). The British vision of the future institutional architecture dominated by the European Council not only reflects the very strong domestic position of the Prime minister who represents the Country in the institution. Government as well as the opposition aim at strengthening the national governments’ weight in EU institutional balance. They both largely share that the primary sources of democratic legitimacy in Europe are the directly elected and representative institutions of the nations of Europe – national parliaments and governments. (Blair 2000, Heathcoat-Armory 2002, plenary, 21.01.2003). This also explains the British rejection to introduce a parliamentary system of government on the European level in which a strengthened European Parliament would elect the President of the Commission as the head of a European quasi government. Here again the British resistance towards the establishment of an institutional setup on the European level similar to the domestic nation state systems becomes apparent.3 Such an option, which has dominated the German de3

The important exception in the institutional debate within Britain is the Liberal Democratic party which regardless the British tradition of parliamentary sovereignty and intergovernmental orientation has already for a long time supported a parliamentary institutional setup for the European Union – including an elected President of the Commission (most outspoken Duff 2002).

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bate so far, is considered as in-compatible with British conceptions of national sovereignty, an intergovernmental reading of European integration and the (symbolic / traditional) status of the national Parliament within the domestic system. The German political system, which approximates the current institutional arrangement on the European level the most, has served as the main point of reference in the German debate about the future institutional architecture of the EU (SPD/Grüne 2002, Schäuble/Bocklet 2001). Within the rather homogenous German debate it was Thus not surprising that the Commission should be headed by a President with similar competences to a German chancellor, and that it should be elected by a strengthened European Parliament (Rau 2002, Fischer, Teufel, plenary, 20.01.2003). The Council of the European Union on the other hand was imagined as simply devolving into a second Parliamentary chamber resembling in structure and competence the German Bundesrat (Bundesrat 2002, Clement 2001). It was supposed to merely represent the national interests of the constitutive units of a future European federation – a model that differs decisively from the bicameral systems of France and the UK. This simplified but principally valid model has only been modified within the German discourse after the Government in its ambition to revive the Franco-German axis accepted the idea of a permanent president of the European Council. (Fischer/de Villepin 2003). However, the oral explanations of this joint Franco-German paper by the two foreign ministers revealed how strongly the two proponents were still influenced by their domestic constitutional models. Whereas Fishers explained in length the advantages of a parliamentary elected president of the Commission, de Villepin nearly exclusively focused on the president of the European Council and his collaboration with the president of the Commission (Fischer, Villepin, plenary 21.012003). Austria is in an ambivalent position. While the President has a strong position de jure he has renounced his power de facto. The sceptical Austrian position towards the German and French initiative for a strong president of the European Council (Bösch, plenary, 20.01.2003) is thus more influenced by constitutional reality than by black-letter law. The Austrian advocacy of an elected president of the Commission elected by the European Parliament (Bösch, plenary, 21.01.2003) could on the other hand be interpreted as the transfer of the Austrian system where an elected president plays a foremost symbolic role and the politically dominant figure is the parliamentary elected Chancellor.

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4.2 Legislative and Executive Functions In contrast to the diverging positions concerning the electoral powers of the European Parliament, a strengthening of the EP in the legislative and the budgetary process was rather consensual within the convention as such and the countries under study (Scholl 2003). However, the ‘full parliamentarisation’, regularly demanded by German politicians (e.g. SPD/Grüne 2002, Meyer, plenary 23.05.02; Teufel, plenary, 20.01.03) that would also include a right of initiative which was not even called for by the European Parliament itself (Maurer 2003). In the debate on the role of the Council of the European Union, the German system clearly served as reference point. Accordingly the Council was originally regarded simply in terms of a second chamber with purely legislative functions (Rau 2001, Clements 2001). Later on the German debate experienced some sophistications and from 2002 onwards a clear separation of the Council’s legislative and executive tasks was demanded (SPD/Grüne 2002, Bundesrat 2002), which acknowledged the two functions of the institutions. Still, the German government demanded to lift the idea of a clearer separation of powers to the European level (Glotz, plenary, 12.09.2002). A similar separation of power model was followed by the representative of the Austrian Parliament, who demanded a legislative Council formation which should be organised like the US Senate (Bösch, plenary, 12.09.2002). The Austrian government was less clear in its position. Although the Foreign Minister supported the idea of extending the co-decision procedure to all matters on which the Council decides by majority, the institution was still regarded as the ‘best guarantor for safeguarding national identities’ that should not be reduced in its functions into a purely second chamber (Ferrero-Waldner 2001). A role that especially within the political system of Austria is only of minor importance. This position has been largely shared within the French debate. While the importance of the European Parliament as co-legislator in which EU citizens were represented was acknowledged (Chirac 2002), the role of the Council should not be reduced to a second chamber. However, the two functions of the Council should be more clearly distinguished. The socialist party therefore proposed to clarify this distinction by the creation of a legislative Council (DSF 2002). The introduction of such a council formation that should debate in public was supported as well within Germany since such a solution came close to the creation of a second chamber. In Britain, such an option was not even debated. In all the comments the British position towards the institutional set-up remains clear that the Council of the European Union remains the main decision-making institution exercising legisla-

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tive and executive functions at the same time (MacLennan of Rogart, plenary, 13.09.2002). Instead reform options, such as reducing the number of council formations or creating permanent presidencies for each of the council formations, have been much more in the centre of discussion (Straw 2002, Hain 2002, Hain, plenary, 15.05.03).

4.3 The Role of National Parliaments The debate on the role of the national Parliaments can again be viewed to a large extent through the lens of domestic constitutional traditions. Although Parliaments in the UK and France are clearly dominated by the executive they are still regarded as the central location of democratic representation – be it of the one and undividable republic or the carrier of national sovereignty itself (Armstrong/Bulmer 2003, Duhamel 2000). Therefore it is not surprising that the debates on the role of national Parliaments were much more intense in France and the UK than in Germany and Austria, where parliaments on various political levels have been part of the constitutional tradition. Whereas even national Parliamentarians in Germany and Austria seemed content with the control powers granted to them by the constitutional changes of the 90s (e.g. Roth 2002), a strengthening of the national parliament’s roles was high on the agenda in France and even more in Britain. Originally the idea of creating an additional chamber for national Parliamentarians on the European level found broad support in Britain, in France (Haenel 2002, Hoeffel 2001) and even in Austria a mixed chamber of MPs and MEPs was proposed. During the debates of the Convention, however, this option lost momentum after the discussions in the working group on the role of national Parliaments only the President of the Convention seemed to further uphold the idea (Giscard d’Estaing 2002). Instead the debates shifted to the question of how to give each national Parliament a stronger say in controlling the principles of subsidiarity and proportionality. The consensus that emerged rather early in the respective working group of the European Convention, namely to introduce an early warning system for national Parliaments seemed to satisfy the pledges for a stronger say of Westminster and the Assemblée National (Vernet, 2002, Straw 2003) and was supported by the representative of the German Parliament as well (Meyer 2002). Summarising the national debates on the future institutional set-up on the European level it seems that in France and Germany the debate has implicitly or explicitly concentrated on the question about how to create a European institutional architecture comparable to the domestic systems. In the British debate on the oth-

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er hand the domestic model has – apart from the discussion on the role of national Parliaments – not at all served as a model for the European level as that would strongly conflict with the national conception of sovereignty and democracy. The Austrian position seems to oscillate between the transfer of national concepts and immediate political interests. It opts for continuing the community method without a president of the European Council and a Commission in which all countries are present with the same rights, while at the same time, increasing the democratic quality of the EU by accrediting more power to the parliament. The set of Austrian preferences can possibly be more plausibly explained as a result of the interests of a small member state than as a consequence of Austrian constitutional tradition.

5. National Constitutional Arrangements and the Division of Competences in the EU The debate of whether the European Union is or should resemble a federal type of polity has been highly symbolic and politicised. While the principle that the EU consists of different levels on which competences are exercised is uncontested the proper term and the way of organising this division of competences has been hotly disputed with positions largely depending on the national and constitutional background. In the sample Germany and Austria represent two federal types of state organisation that are characterised by a continuous process of centralisation. While Article 2 of the Austrian Constitution states, "(1) Austria is a federal state", the federal principle has been relatively weak in the constitution as well as in political reality. According to the Austrian constitution the provinces have a general competence, i.e. all competences not explicitly enumerated as federal ones are automatically within the authority of the provinces. But the enumerated competences of the republic, thus resembling a catalogue of competences, are numerous and of high impact. (Pelinka 1997, 480). Consistent with the decentralised history of Germany, in which the sub-national entities have always preceded the federal structure (Boldt 2003), federalism is laid down in the Grundgesetz as one of the basic principles of the Federal republic. In this system the German Länder are not only territorial sub-units of the Federal Republic. They are endowed with autonomous statehood (Eigenstaatlichkeit) and thus have the competence to legislate within their own territory. However, during the post-war history the German federal system has quickly evolved into a rather centralised system in which the federal level regularly intervenes in originally Länder competences and the Länder governments progressively use

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their power within the Bundesrat to influence federal legislation. The Federal Republic has therefore regularly been described as ‘unitarian Federation’ (Hesse 1978), although the formal competences of each level are enumerated in the constitution. On the other hand the two formally Unitarian states of France and the UK have recently experienced a process of devolution or decentralisation. For the moment the article 1 of the French constitution still states that France is an indivisible republic, which prevents the country from a federalist evolution. This article is the legacy of an age-old political history, that originates in the will of the emerging French state of the 15th century to constitute and to consolidate a centralised state. Nevertheless, France currently seems to move towards the acknowledgement of specific regional entities with special attributes as the case of Corsica. (Schoettl 2002). The UK as well is formally a unitary state and there is no defining written constitution limiting the powers of government or of the legislature. Instead of a written constitution, there exists a sovereign legislative body, which represents the ultimate law-making power in the state. Power is given to the Scottish Parliament and the regional assemblies and to local government, under Acts of the UK parliament, and to fulfil defined functions. Still regional parliaments, assemblies and local authorities are entirely creatures of Acts of Parliament, and any power given can subsequently be withdrawn (at least legally speaking) (Barnett 2000). Nevertheless in political practice the Scottish parliament can legislate within the competences conferred to it and politically it would be very difficult for Westminster to reallocate these competences.

5.1 The Debate on the Catalogue of Competences As for the debate on the institutional architecture of the EU the structure of the own federal constitution dominated the discussions in Germany. It is striking that even after prominent representatives of the German Länder had given up to talk about a ‘catalogue of competences’ the German system that has evolved into a static Unitarian federation was still regarded as a model for dividing competences between the European and the national level (Teufel, plenary, 21.03.02). The same seems to be true in Austria where this time the formal federal Austrian constitution seems to influence the position of the representatives more than the constitutional reality in the country (Farnleitner/Tusek 2003, Bösch, plenary, 15.04.2002). Especially the representatives of the German and Austrian Länder seemed to fight for competences through the European level that they had lost domestically.

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The question of ‘who should do what’ was of central importance in the British and French debate as well. Being traditionally unitary states they only recently experienced tendencies of devolution or decentralisation the concept of federalism and a constitutional division of competences for the European Union is therefore still met with considerable doubts. Especially in the UK the term ‘federalism’ is still semantically linked to notion of ‘super state’ (Blair 2000, Straw 2003) and is used by the opposition to steer the domestic fear of any further European integration. In France where the term federalism is not automatically linked with a European super state, politicians have still been sceptical towards a static catalogue of competences (Moscovici, plenary, 15.04.2002). With regards to the division of competences the debate in Britain – instead of asking for a rather static list of competences – concentrated more on the procedural distribution of tasks (Hain 2002). Thus constitutional principles and political mechanisms should be formulated to define the respective responsibilities. This should be done on the basis of the understanding that powers not delegated to the EU remain the preserve of the member states (Straw 2002). In France the government as well supported the clarification of competences in order to limit excessive European regulation (Chirac 2002) and the socialist project even asked for an political a priori and a judicial a posteriori control of competences. How this could be exercised without a clear list of competences remains unclear. One important difference in the national debate on the division of competences seems to be that in contrast to France, Germany, and Austria the British discussions focus much more on political rather then legalistic measures to ensure the constitutional principles. This corresponds to a large extend to the domestic experience where a constitutional document is not even needed but where the system relies much more on tradition and mutual agreements.

5.2 (Re-)allocation of Competences? Consistent with the pledge that the Union should only exercise competences explicitly conferred upon it, re-nationalisation of some political sectors such as agricultural policy was intensively debated in Britain (Heathcoat-Amory, plenary, 15.04.2002). Whereas the option of re-nationalisation was at least considered within the German debate (Stoiber 2002, Glotz, Teufel, plenary 15.04.2002) the proposition was met with fierce opposition in France (Chirac 2002). Especially with regard to the CAP there was no room of manoeuvre neither for the French Government (De Villepin, plenary, 13.06.2003, Andreani, plenary, 04.07.2003). On the other hand further communitarisations such as in the area of tax harmoni-

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sation have been rejected bluntly in Britain (Hain, plenary, 07.11.2003, MacCormick, plenary, 30.05.03). Instead, the UK was open to give up further competences in the area of internally Security and Justice. Germany, however, that principally supported further communitarisation strongly fought for unanimous decision making in the Council for questions of access to national labour markets (Teufel, plenary, 03.04.2003, Bury, plenary, 31.05.2003. It seems to be difficult to detect within this debate clear and consistent country specific positions that are rooted in the national constitutional traditions. The preferences of the countries regarding the exact allocation of competences are of course to some extent influenced by the notions of sovereignty and a general approach to European Integration the exact distribution, however seems to be better explicable by their immediate perceived political interests.

6. Conclusion: The Impact of National Traditions – Two Pathways The analysis of the national discourses on the future of Europe and the various reform options that have been put forward has shown that in order to understand these debates and the preferences expressed the appreciation of the various domestic constitutional background is of high importance. National practices and traditions do have a strong impact on nearly all of the discussed reform options. Two logical pathways can thereby be distinguished: the ‘uploading’ mechanism comes into play when domestic institutional arrangements serve as a concrete model for reform on the European level. The ‘contrasting mechanism’ gains salience when national constitutional traditions and conceptions of democratic decision making cannot simply be exported to the European level. Then European reform options are framed in contrast to domestic arrangements with the aim to preserve the essentials of the domestic system. Especially in France and in Germany it seems that reform options are driven by the aspiration to ‘upload’ domestic institutional set-ups with more or less modifications to the European level. In Germany the debate is thereby far more homogeneous then in France, taking the German model of a federal parliamentary democracy with a second chamber of Länder governments and a strong Constitutional Court to be applied to the European level. The second federal country under study, Austria, is more cautious in bringing forth proposals for institutional settings but advocates within its federal tradition the competences of provinces, regions and municipalities in the European constitutional structure. In Britain on the other hand domestic institutional structures have not at all served as a model for

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the European institutions, not at least because the establishment of a parliamentarian system on the European level is regarded as incompatible with the British notion of national and parliamentarian sovereignty and democracy. On the contrary British reform options have been constructed exactly in order to not resemble the domestic institutional arrangements on the European level and to preserve instead the powers of the domestic institutions. In general the different concepts of sovereignty have left the UK and France in a far more intergouvernmentalist position still strongly emphasising the importance of the national level, the nationally elected authorities and the government’s representation on the European level. Thus, deeply rooted constitutional traditions and established ‘ways of doing things’ do have a strong impact on the debates. This is true in procedural matters as well, where Britain regularly advocates a more political approach whereas French and German reform options are driven by the more legalistic traditions of these countries. Nevertheless there is common ground and even convergent tendencies in the various national debates can be observed. The very aim to create a European constitution for example is meanwhile shared in all countries under study apart from a British minority of fierce Euro-sceptics. Whereas this represents a rhetorical shift in the British and French debate the core notion of sovereign nation states has still been preserved even in the two federalist countries. Despite all the talks of a European constitution it has been consensus in all countries under study that the European Constitution is to be constructed as a treaty among nation states. German proponents in the national debate have– as a result of the discussions on the European level – not any longer focused with the same rigor on questions of dividing competences in the future constitution. The French debate as well has experienced some movements such as the shift towards a broader acceptance of a legal personality for the European Union that used to be regarded as incompatible with the sovereignty of the ‘one and united French people’ organised into an indivisible republic. Thus although constitutional traditions are of major importance indeed for the understanding of constitutional preferences they are by no means static.

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Lamassoure, A. (2002b), ,De la nécessité d’un manifeste fédéral’, Le Figaro, Feb. 28. Lamassoure, A. (2002c), Rapport sur la délimitation des compétences entre l’UE et les Etats-membres (Report adopted by the EP), PE 304.276, Apr. 24. Leinen, J. (2002), Verfassung der Europäischen Union. Vorschlag an den Konvent „Zukunft der Europäischen Union“. Lenoir, N. (2002a), Speech to the Mouvement Européen, Oct. 12. Lequiller, P. (2002a), ,Un Président pour l’Europe, j’y crois’, Le Figaro, Aug. 16. Meyer, J. (2002), Letter sent by Mr Jürgen Meyer, member of the Convention, to the President of Working Group I, Mr Iñigo Méndez de Vigo, 18.09.02, WG I, W D 24. Pleuger, G. (2002), The Comments of Dr Gunter Pleuger to the Preliminary draft report submitted by the Chairman at the meeting of 18 July 2002 (SN 03130/02), WGIII, WD11. Rau, J. (2002), Plädoyer für eine Europäische Verfassung, Rede am 04.04.02. vor dem EP. Roth (2002), Speech, given at the Institut für Europäische Politik, 26.06.2002. Schäuble W./Bocklet, R. (2001), European Constitution Contract. CDU and CSU Proposal, 26.11.01. Schäuble, W. (2000), ,Europa vor der Krise? Die Politik der Bundesregierung und Brüssels treibt das Einigungswerk in die Sackgasse’, Frankfurter Allgemeine Zeitung, 08.06.2000. SPD / Grüne (2002), Antrag der Fraktionen SPD und Bündnis 90/Die Grünen. Reform durch Verfassung: Für eine demokratische, solidarische und handlungsfähige Europäische Union, Deutscher Bundestag, 14. Wahlperiode, Drucksache 14/9500. Strauss-Kahn, D. (2000), ,Reconstruire l’Europe à partir de l’Euro’, in : Les avenirs de l’Union européenne, Quo Vadis Europa, Note de la Fondation Jean-Jaurès n˚16. Straw J. (2002), Reforming Europe, new era, new questions, Speech in The Hague, 21 February 2002. Straw J. (2003), ‚Britain, the European Union and the European Convention.’ Zeitschrift für Staatsund Europawissenschaften, 2/2003, 161-166. Védrine, H. (2002a), ,Les yeux ouverts’, Le Monde, Sept. 27. Védrine, H. (2002b), ,Clarifier l’identité européenne’, Le Monde, Dec. 6. Villepin, D. (2002), Débat sur l’avenir de l’Europe, Speech of the Ministry of the Foreign Affairs to the National Assembly, Dec. 3.

Plenary Interventions: Verbatim protocols of the Convention session are accessible at: http://www.europarl.eu.int/Europe2004/index_de.htm, 2005-10-10

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Political Elites and the Future of Europe: The Views of MPs and MEPs Marcelo Jenny, Johannes Pollak, Peter Slominski1

1. Introduction Institutional questions range high on the European agenda since the beginning of the 1990s at the latest. A rapid series of intergovernmental conferences – Maastricht, Amsterdam, and Nice – kept the reform debate alive in the public. Inocously called “left-overs”, the key questions touched on nothing less than a reorganisation of political power in the European system. The Union’s enlargement from 15 to 25 members put additional pressure on the system which basically resembled the model drawn up for only the six founding members. One question which is jutting out in this reform process is the empowerment of the European Parliament. In addition, the Treaty of Maastricht, turned academic attention to the role of national parliaments either by focusing on their influence on European politics (Holzhacker 2002; Pollak/Slominski 2003) or by studying their loss of relative influence towards national executives (Andersen/Eliassen 1996; Goetz/Hix 2000; Green Cowles/Caporaso/Risse 2001; Katz/Wessels 1999; Maurer 1999, 2002; Maurer/Wessels 2001; Norton 1996; Raunio 1999; Raunio/Hix 2000; Raunio/Wiberg 2000; Wessels/Maurer/Mittag 2001). Thus, the parliamentary dimension of European politics is gaining ground amidst a considerable number of articles deploring the democratic quality of the European Union. As a corollary of this we witness a growing literature on party positions towards European integration and on the development of a party system in the European Parliament (Faas 2003; Gaffney 1996; Hix/Lord 1997; Hix 2003; Marks/Wilson 1999; Ray 1999; Scully/Farrell 2003; Thomassen/Schmitt 1999; Weßels 2003). The Convention on the Future of the European Union drew up a draft constitutional treaty which severely alters the relation between nation parliaments and the European Parliament. How do members of national parliaments (MPs) and members 1

M. Jenny, University of Mannheim, [email protected], J. Pollak, Austrian Academy of Sciences, EIF; Jean Monnet Fellow at the Robert Schuman Centre for Advanced Studies, Florence, [email protected] , P. Slominski, Austrian Academy of Sciences, EIF, [email protected].

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of the European Parliament (MEPs) evaluate recent reform proposals? Does their institutional affiliation (national parliament, European Parliament, party and country) have an impact on their position? As MPs and MEPs have different stakes and powers to lose or win in a new distribution of competences in the European multi-level system one should expect them to have diverging preferences over the range of reform proposals and issues. The following tries to shed some light on this topic by drawing on interviews with MPs and MEPs from four member countries of the European Union. In this article we compare current preferences of MPs and MEPs from Austria, France, Germany and Great Britain on some questions of institutional design. The second chapter gives a short description of the data used including their compilation and groupings. In section III we look at arguments on the influence of four independent variables: country affiliation, party family, membership in a supranational versus a national parliamentary assembly and membership in a government party versus opposition party. Section IV presents and discusses the results of our statistical models. Section V offers conclusions.

2. Data The data draw on 203 telephone interviews with legislators from the ‘first chambers’ of the national parliaments of Austria (National Council), France (National Assembly), Germany (Bundestag) and Great Britain (House of Commons) and of Members of delegations to the European Parliament from these four countries. The universe of cases in our study was the sum of MPs of all first chambers and the MEP delegations of Austria, France, Germany and Great Britain, which gives a total of 2315 legislators. Bound by financial constraints 203 interviews were done which translates into a sample size of 8.6 percent. The sample sizes for national legislators range between 6 percent for French MPs and 15 percent for Austrian MPs. As we expected the main influencing factors to be country and legislator’s party affiliation we had chosen a target sample size for each assembly in the study and then selected potential interview partners from these roughly according to the parties’ shares of seats. Between February and April 2003 telephone interviews were collected by the Institute for Panel Research (IPR), a commercial Austrian survey company. At the beginning of February a pre-test had been conducted with a few MPs from Austria and Germany which resulted in a slightly adapted questionnaire. Collection of interviews started with MPs and MEPs from Austria and Germany, turned then to British MPs and in the end phase to parallel collection of interviews with French

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MPs and with MEPs from all four countries. The temporal pattern in the data collection has to be mentioned as it might have had substantive implications for the results gathered. The reason is the diplomatic crisis in the UN Security Council over a resolution ahead of the start of the Iraqi War on 19th March 2003, in which important member states of the European Union took different sides. It saw the large EU countries France and Germany on one side and Great Britain, Spain and Italy on the other side of the divide and brought high tensions into the European Union institutions. Thus, we cannot rule out that this had an influence on legislators’ responses in interviews collected after the UN Security Council decision, in this case on interviews with MPs and MEPs from Great Britain and France. Table 1 gives an overview of the differences between the population and the sample of legislators interviewed by country, combining MPs and MEPs for each country. They are higher for the European legislators, ranging between 11 percent for French MEPs and 38 percent for Austrian MEPs. The values for the DuncanIndex (Duncan/Duncan 1955) of Dissimilarity range between 1.4 for the British House of Commons and 28.5 for the French delegation to the European Parliament. The Duncan index is a measure used to show the representativeness of a sample with respect to important variables. The lower the value of the Duncan index, the more representative a sample is. The index is computed by adding up the absolute differences of the percentage values for the population distribution and the sample distribution and then dividing the sum by 2. It has a theoretical range of zero, indicating a perfect fit, to 100, indicating maximum dissimilarity of the two distributions compared. Table 1: Party Representativeness of sample of interviews MPs

MEPs

Sample size (in % of chamber)

Number of parties/ party categories used

Austria

27 (14.8)

4

14.2

8 (38.1)

4

8.3

France

37 (6.4)

5

5.6

10 (11.5)

8

28.5

Germany

43 (7.1)

5

13.0

21 (21.2)

4

12.7

Great Britain

42 (6.4)

4

1.4

15 (17.2)

4

11.5

Total

149 (7.4)

Duncan Index of Dissimilarity

Sample size (in % of delegation)

Number of parties / party categories used

Duncan Index of Dissimilarity

54 (18.4)

While the Duncan index value for the British MPs of 1.4 shows a high representativeness the index values for the other groups indicate some disproportionality, the highest for the group of French MEPs. In the large European Members of Parliament study of 1996 directed by Bernhard Weßels and Jacques Thomassen, with

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members of national parliaments from 11 European Union countries, the Duncan index values for party representativeness ranged between 1.8 to 18.3 for the different countries (Katz/Wessels 1999, 252). Austria and Great Britain were not included in their set of countries. As data collection for our study was by telephone, answer scales were not as fine-grained as in the written questionnaires of the study just mentioned. We relied on 4- and 5-point scales. Ahead of analysing the answers the collected data were weighted according to party strengths in the chamber or parliament at the time of the last general election in each country. For the French National Assembly data on the current seat distribution were used. The interviews opened with a question on the importance of the then ongoing debate in the European Convention about the future of Europe. The answers to that question are shown in table 1a. MPs and MEPs from Austria, Germany and Great Britain overwhelmingly judged the debate in the European Convention as “very important” or “important”. MPs from Austria and Germany seemed to see it as somewhat less important than their MEPs, while there is no apparent difference between British MPs and MEPs. Table 1a: Importance of Debate in European Convention Very important

Not important at all

(n)

(27)

Austria MPs

62

27

8

4

-

Austria MEPs

86

14

-

-

-

(7)

France MPs

49

41

8

3

-

(37)

France MEPs

100

-

-

-

-

(10)

Germany MPs

72

19

9

-

-

(43)

Germany MEPs

81

19

-

-

-

(21)

Great Britain MPs

81

14

2

2

-

(42)

Great Britain MEPs

83

8

-

-

8

(12)

Total

76

18

4

1

1

(152)

Numbers given are percentages, absolute values are in parentheses.

A linear regression was run to test whether the differences in the answers of MPs and MEPs are large enough to be statistically significant. As can be seen in table 1a the distribution of the answers is highly skewed to one end of the scale and the variation in the answers is small. Several regression models were specified. The first one was bivariate, includ-

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ing only the MP-MEP distinction as an independent variable. The second model added dummy variables for the different countries and in a third model additional dummy variables for party families (Social Democrats, Christian Democrats, Liberal Democrats and Greens) were put in.2 Ahead of running the regressions “don’t know” answers were set as missing cases. The regressions detected a significant difference between MPs and MEPs. This is mainly due to the French MEPs who uniformly judged the debate in the Convention as very important. Christian Democratic deputies see the debate as somewhat less important than deputies from other parties. The latter result is significant at the 10% level. This lends no support to the claim that the legislators from different countries and legislative bodies judge the importance of the debate in the European Convention differently.

3. Positions of MPs and MEPs towards European integration What are the arguments why MPs and MEPs should differ in their opinions towards European integration? Why should we expect MEPs from the same country and belonging to the same party to exhibit on average a more integrationist stance than their party colleagues in national parliaments? One argument points to competition for decision-making competencies between MEPs and MPs (Katz 1999, Weßels 2003). If the legitimacy and reputation of an assembly and its deputies depends on actual participation in decision-making processes, we should expect the MEPs on the one side and MPs on the other side trying to draw into or keep as many policy areas in their respective domains. Franklin and Scarrow (1999, 45ff) mention as other possible reasons (a) an integration bias of voters actually participating in European elections, (b) an integration bias in the self-selection of the candidates in these elections and (c) a quick socialization and adaptation of newly elected MEPs to integrationist norms existing in that assembly. The end state of the latter process is aptly summarized in the phrase “where you stand depends where you sit” (Franklin/Scarrow 1999, 47). According to the authors empirical evidence for (b) and (c) is mixed while (a) is seen as refuted. Why should we expect MEPs and MPs not to differ with respect to their positions towards European integration? Because they are (a) members of the same party, (b) want to be re-elected and (c) are elected in the same country. Depending on the hierarchical structure of the party it could well be expected that the leeway 2

Due to space constraints these regressions as well as later regressions with other dependent variables are not presented in detail. Any details can be obtained from the authors.

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for single MPs and MEPs is restricted. At the same time the party (parliamentary faction) members are elected on the basis of the same party platform which suggests that their views might not be radically different. Furthermore, since they want to be re-elected straying too far from the party list might not prove helpful for finding one’s name on the electoral list again. The last item, election in the same country, points to the party platform again. In most party platforms we find at least some paragraphs on European integration (Gabel/Hix 2002). It is true that they are not excessively detailed and specific but it can be assumed that they are written with an eye to public preferences. If politicians take up this preferencs to a certain degree in order to get elected and accommodate to the party line MPs and MEPs from the same party should not be too far away in their views on the institutional re-organisation of the Union. Different member countries of the European Union have different national interests, problems and political agendas, which could all exert stronger influences on deputies’ opinions than the fact that MEPs and MPs occupy seats in different assemblies. Most MEPs from different countries belonging to the same ideological party family join trans-national EP party groups. Yet as an observer noted: “Despite the transnational complexion of the party groups and the socialization of MEPs into this work environment, national considerations remain part of intragroup dynamics” (Ladrech 1996, 293).3 These trans-national party groups exert an influence on the distribution of tasks and the MEPs’ career paths in the European assembly (Corbett/Jacobs/Shackleton 2000; Mamadouh/Raunio 2003). However, the first gate a hopeful aspirant to the European Parliament has to pass is guarded by the national party. “Candidates are selected, not at the European level, but at the national level by national parties” (Thomassen/Schmitt 1999, 133). Negating re-nomination is an effective, though ex post instrument against MEPs who dare to deviate to far from the position of the national party leadership. An example of that censure power was given by the Austrian Freedom Party (FPÖ) in the European elections 2004. Despite her ambition to continue, the leader of the Freedom Party’s EP delegation, Daniela Raschhofer, was not re-nominated as a candidate. She was the most visible representative of the less Eurosceptical faction in the party. Her failed re-nomination was the result of her siding with the subsequently defeated party faction in an intense intra-party struggle in the summer of 2002. This conflict ended with the resignation of the party chairwoman, who was also vice-chancellor in the government cabinet together with 3

Furthermore, one must not forget that the party families in the EP unite quite diverse opinions, e.g. the conservative British anti-Europeans in the basically pro-European European People’s Party.

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two other FPÖ ministers and prompted its coalition partner, the conservative People’s Party, to call early elections. The FPÖ suffered a crushing electoral defeat, but rejoined a government coalition with the People’s Party. Both MEPs and MPs belong to the wider national party elite, but the latter usually account for a larger share of it. Every major party has more MPs than MEPs. Thus in an intra-party conflict on European policy MEPs may point to their larger expertise while MPs can point to their numbers. In effect the MPs median position should often determine the party position and the latter bind the MEPs. Summarizing these arguments MPs and MEPs may not differ much in their opinions after all and a recent study indeed concludes: “Our most striking finding is how closely MEPs resemble the members of national parliaments in terms of pro- or anti-European outlook” (Franklin/Scarrow 1999, 57). The country affiliation of deputies should play a role with regard to questions of the future design of the EU as national interests are at stake. The governments of the three big EU member states France, Germany and Great Britain had quite different preferences on European issues in the past and there are recurring conflicts of interests between large member states and small member states like Austria. Although they are sometimes exaggerated (Pollak/Puntscher Riekmann 2002) it seems to be clear that as soon as a reform proposal is e.g. based on population size, preferences differ. The national government’s preferences on some of the issues we asked here are laid out by Scholl (2003). Party family is the third independent variable we look at. Several attempts map the positions of party families and parties towards European integration cross-nationally (Hix/Lord 1997; Hix 1999; Taggart 1998; Marks/Wilson 1999; Marks/ Wilson/Ray 2002). Usually they result in a two-dimensional depiction of political space. One dimension is a dominantly socio-economic left-right dimension and the second dimension a pro- vs. anti-integration dimension. We did some OLS regressions with these three independent variables and added as a fourth one whether a party was currently in government or not. The argument for including this variable is that deputies of government parties in parliamentary democracies are under higher pressure to abide by the party line than deputies of opposition parties. Thus, this adds another hypothesis why MPs and MEPs may express rather similar positions.

4. Results The results obtained by using multivariate OLS regressions are presented in the following order. First, we present some models dealing with institutional ques-

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207

tions, then models on the competence distribution between the national and the supra-national level and finally models on appointment/recall/censure questions. Due to space restrictions we present only the ‘full’ model which includes all independent variables on each question. Each regression includes a dummy variable for MEPs, three country dummy variables and six party family dummy variables and a dummy variable to distinguish whether the deputies were from a nationally governing party or from an opposition party. Germany is the base category for the countries. The base party family is the combination of Christian Democrats and Conservatives, which gives a party group comprised of mostly integration-friendly parties – with the notable exception of the British Conservatives. The party family dummy ‘other’ is comprised of MEPs belonging to the Europe of Democracies and Diversities (EDD) party group in the European Parliament and of MEPs and MPs from regionalist parties. The base line in all regressions is the group of German Christian Democratic opposition MPs. Table 2 presents three different models on the preferred future influence of various national and EU-level institutions. The dependent variable in model 1 is an index formed with the answers to two questions on how much influence should the European Parliament and the national parliaments have in the future. Answers were on a five point scale with values from 1 to 5. The index was formed by subtracting the value of the answer on the future importance of the national parliaments from the value of the answer on the future importance of the European Parliament. The index thus has a range from -4 to 4. A value of 4 means a deputy thought the European Parliament should be very important in the future while the national parliaments should have no influence at all, a value of -4 indicates the reverse position. A value of zero means a deputy wants these legislative institutions to be of equal influence. For model 2 we created another similar index, this time putting the national parliament and the European Parliament together on one side and the European Council and the European Commission together on the other side. This is a division between parliamentary bodies and executive bodies. The analogy is a rough one because of the European Union’s peculiar legislative procedures. For this index the value of -4 attaches a very high influence to both the national parliaments and the European Parliament while a value of 4 attaches a very high influence to both the European Council and the European Commission. In model 3 the importance attributed to the national parliament is set against the combined importance of the EU-level institutions. The index subtracts the answer given for the importance of the national parliament minus mean importance attributed to the three other institutions. This index, too, has a range of –4 to 4. The higher its value the more influential should the EU-level institutions be.

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Table 2: Multivariate OLS Regression on future importance of national and supranational institutions

Independent variables

Member of European Parliament Country Austria France Great Britain Party family Extreme Right Liberals Social Democrats Greens Extreme Left Other Government Participation Constant Adjusted R2 Sample size

Model 1:

Model 2:

Model 3:

National parliament vs European Parliament

National parliament/ European Parliament vs. Commission/Council

National parliament vs. Commission/Council/ European Parliament

0.91*** (0.22)

0.35** (0.16)

0.86*** (0.21)

-0.43 (0.30) -0.19 (0.27) -1.69*** (0.26)

0.18 (0.22) -0.04 (0.19) -0.23 (0.19)

-0.13 (0.28) -0.14 (0.25) -1.25*** (0.25)

0.13 (0.57) 0.75* (0.43) 0.12 (0.23) 1.01** (0.40) -0.08 (0.54) -1.16** (0.56) -0.12 (0.22) 0.66*** (0.24) 0.30

-0.51 (0.40) 0.14 (0.31) 0.06 (0.16) -0.07 (0.29) -0.88** (0.38) -0.72* (0.41) 0.07 (0.15) -0.46*** (0.17) 0.03

-0.29 (0.52) 0.54 (0.41) 0.10 (0.21) 0.60 (0.39) -0.67 (0.50) -1.30** (0.54) -0.07 (0.20) 0.14 (0.22) 0.22

202

194

194

Notes: Entries are unstandardized ordinary least squares regression coefficients with standard errors given in parentheses. *p<0.10; **p<0.05; ***p<0.01. Base values for categorical variables are Germany (country) and Christian Democrats/Conservatives (party family). Model 1: Dependent variable is a 9-point index, running from high importance of national parliaments (-4) to high importance of European Parliament (+4). Model 2: Dependent variable is a 9-point index, running from high importance of national parliaments (-4) to high importance of Council/Commission (+4). Model 3: Dependent variable is a 9-point index, running from high importance of national parliament (-4) to high importance of EU institutions (+4). Question wording: In your opinion, how much influence should the following institutions of the European Union have in the future? Please grade on a scale from 1 to 5, the number 1 indicating “a very big influence” and 5 indicating “no influence at all”.

Political Elites and the Future of Europe: The Views of MPs and MEPs

209

Looking at model 1 German Christian Democratic MEPs on average tilt towards attributing more influence to the European Parliament than to the own national parliamentary body, the German Bundestag. Being a member of the European Parliament moves a deputy’s view whether the European Parliament or the national parliaments should be more important almost a whole scale point towards the supranational legislature he or she sits in. An even stronger effect is exhibited in model 1 for being a legislator from Great Britain. On average British legislators are much more inclined to accord more influence to their national parliament than to the European Parliament. That holds true even for the British MEPs as the country effect is larger than the MEP effect. The other two country effects are much smaller and not statistically significant. The views of Social Democratic legislators are similar to the ones of Christian Democrats. Surprisingly neither legislators coded as belonging to the extreme left nor to the extreme right are different either. They are small numbers in our sample, but exhibit rather diverse views, resulting in large standard errors. Legislators from the green and the liberal party family want more influence for the European Parliament while the ‘other’ party family assembles a group of Eurosceptics who want more influence for the national parliaments. In this multivariate model the participation in government doesn’t have an additional significant influence. The adjusted R2 statistic of 0.30 is satisfactory. This cannot be said for model 2 which gives an adjusted R2 of 0.03. In effect it tells that the independent variables included in the model do not differentiate the deputies in meaningful ways. The only significant variables are the MEP variable and the party family variables for the extreme left and regionalist parties. The effect of the MEP variable is not very large. Being a member of an extreme left or of a regionalist party has more influence. But the direction of the MEP variable is surprising. According to the sign MEPs – on average – attributed more future influence to the Commission and Council than MPs. Model 3, which pits the national parliament against the three EU-level institutions shows a remarkably similar pattern of influences as model 1. It is again the British and EDD/regionalist deputies who favour clearly more their national parliaments while MEPs want more influence for the EU-level institutions. While the questions dealt with in table 2 were of a broader nature, the models in table 3 and 4 deal with some rather specific questions of institutional design for the European Union. Deputies were asked on a five point scale whether they were in favour (1) or against the following proposals (5): A European constitution, a European-wide referendum on the results of the Convention, the direct election of EU Commission by the EP, the direct election of the president of Council of the EU, giving up the principle of unanimity in foreign policy, election of the mem-

210

Marcelo Jenny, Johannes Pollak, Peter Slominski

bers of the Commission and the president of the Commission, dismissal of Commission members. Table 3: Multivariate OLS Regressions on issues of institutional design Model 4: Independent variables

Member of European Parliament Country Austria France Great Britain Party family Extreme Right Liberals Social Democrats Greens Extreme Left Other Government Participation Constant Adjusted R2 Sample size

Model 5:

Model 6:

Model 7:

Model 8:

Model 9:

European Europe-wide Direct Election of Direct Giving up Constitution referendum election of the president election of Principle of on result of the president of the EU the president Unanimity in convention/ of the EU Commission of the Foreign government Commission by the Council of Policy conference European the EU Parliament

-0.27* (0.16)

0.62*** (0.21)

0.53** (0.24)

-0.17 (0.20)

0.53** (0.21)

-0.53** (0.25)

0.04 (0.22) 0.51*** (0.19) 1.10*** (0.18)

-0.40 (0.30) -0.85*** (0.26) 0.14 (0.25)

-0.16 (0.32) -0.42 (0.29) -0.04 (0.28)

0.08 (0.27) 0.38 (0.24) 1.36*** (0.23)

-0.42 (0.29) -0.72*** (0.26) -0.22 (0.25)

0.40 (0.35) 0.64** (0.31) 0.86*** (0.29)

0.32 (0.41) -0.54* (0.31) -0.48*** (0.17) -0.41 (0.29) 0.56 (0.39) 0.02 (0.42)) -0.26 (0.16) 1.69*** (0.17) 0.21

-0.35 (0.54) -1.28*** (0.41) -0.98*** (0.23) -0.91*** (0.38) -0.89* (0.51) -0.69 (0.56) 0.01 (0.21) 2.96*** (0.23) 0.16

0.28 (0.61) -1.32*** (0.47) -0.49* (0.25) -0.60 (0.42) 0.28 (0.57) -0.46 (0.68) -0.58** (0.23) 3.73*** (0.25) 0.14

-0.48 (0.50) -0.03 (0.38) -0.34 (0.21) -0.12 (0.35) -0.24 (0.48) 0.53 (0.56) 0.09 (0.19) 1.80*** (0.21) 0.17

0.37 (0.54) -1.13*** (0.42) -0.37 (0.23) -0.48 (0.38) 0.90* (0.51) 0.10 (0.60) -0.49** (0.21) 4.00*** (0.23) 0.14

1.01 (0.65) -0.70 0.50) -0.17 (0.27) -0.35 (0.45) 0.68 (0.61) 0.66 (0.66) 0.31 (0.25) 2.61*** (0.28) 0.08

203

198

199

201

193

195

Note: Entries are unstandardized ordinary least squares regression coefficients with standard errors given in parentheses. *p<0.10; **p<0.05; ***p<0.01. Base values for categorical variables are Germany (country) and Christian Democrats/Conservatives (party family). Scale ranges from 1 (=very much in favor of) to 5 (=very much against)

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Political Elites and the Future of Europe: The Views of MPs and MEPs

Table 4: Multivariate OLS Regression on election and dismissal of the Commission by EP majority vote Model 10: Model 11: Election of Independent variables

Member of European Parliament Country Austria France Great Britain Party family Extreme Right Liberals Social Democrats Greens Extreme Left Other Government Participation Constant Adjusted R2 Sample size

Model 12:

Model 13: Dismissal of

Model 14:

President of the Members of the President of the single members Commission Commission Commission of the Commission

the complete Commission

-0.06 (0.24)

-0.09 (0.22)

-0.48*** (0.17)

-0.27 (0.21)

-0.52** (0.21)

0.36 (0.33) 0.72** (0.29) 0.76*** (0.27)

-0.25 (0.31) -0.09 (0.26) 0.14 (0.25)

0.49** (0.24) 0.27 (0.21) 0.48** (0.20)

-0.07 (0.30) -0.10 (0.26) -0.09 (0.25)

0.01 (0.29) -0.04 (0.25) -0.33 (0.24)

-0.19 (0.61) -0.51 (0.46) 0.28 (0.25) -0.61 (0.42) -0.22 (0.57) 0.66 (0.62) -0.05 (0.23) 1.98*** (0.26) 0.10

0.32 (0.56)) 0.15 (0.42) -0.27 (0.23) -0.27 (0.39) -0.13 (0.53) 0.88 (0.58) 0.01 (0.21) 2.65*** (0.24) -0.01

-1.16*** (0.44) -0.94*** (0.34) -0.43 (0.18) -0.99** (0.31) -0.81* (0.42) 0.10 (0.46) 0.08 (0.17) 2.00*** (0.19) 0.14

-0.67 (0.55) 0.06 (0.42) -0.43* (0.22) -0.95** (0.38) 0.91* (0.52) -0.11 (0.57) 0.04 (0.21) 2.55*** (0.23) 0.08

-0.48 (0.54) -0.23 (0.41) -0.14 (0.22) -0.91** (0.38) -0.68 (0.51) 0.37 (0.55) 0.36* (0.21) 2.50*** (0.22) 0.10

201

201

202

202

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Note: Entries are unstandardized ordinary least squares regression coefficients with standard errors given in parentheses. *p<0.10; **p<0.05; ***p<0.01. Base values for categorical variables are Germany (country) and Christian Democrats/Conservatives (party family). Scale ranges from 1 (=very much in favor of) to 5 (=very much against)

Looking at the values for the constant in the various models we see that German Christian Democratic MPs are most in favour of a European constitution and least in favour of a direct election of the president of the Council of the EU. To Mem-

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bers of the European Parliament the right to censure is apparently more important than the right to elect the Commission president and the Commission, but they are also not very fond of handing these rights to the voters. However, instead of discussing each model’s results and the variables’ signs in detail we want to draw attention to the variables that most often show a sizable and significant influence. In 7 out of 11 issues the MEP-MP distinction turned out significant. In 7 out of 11 issues also at least one country variable turned out significant and in 7 out of 11 issues at least one party family variable showed up. Only twice does being a member of a government party or an opposition party make a difference in these evaluations. All the models exhibit a rather bad fit. Among them, model 4 (in favour or against a European constitution) has the highest adjusted R2 value (0.21). As so many dummy variables were put into these models collinearity is also a problem. Given the small sample size and the ordinal nature of the dependent variable, how generalizable are the results of these ordinary linear regression results to the universe of these assemblies? Due to these reasons we will make no attempt to defend any precise estimates. Nevertheless, we think that a larger-scale survey would show similar results with respect to the more important question which independent variable is the most influential one: assembly membership, country or party family with government membership being clearly a less relevant factor.

5. Conclusion One option to explain the differences between the countries is by referring to their different constitutional and legal traditions. It is obvious that British legislators are strongly influenced by the doctrine of parliamentary sovereignty and subsequently are less tempted to transfer further rights to the European level. The establishment of a strong parliamentary system at the Europen level is regarded as incompatible with the notion of British national and parliamentary sovereignty. Equally, their modest ardour for a European constitution at all is not surprising since the British legal system knows no written constitution. The Germans MPs and MEPs zeal for a European constitution seems to a large extent driven by the aspiration to export the German constitutional model to the European level. The Austrian deputies on the other hand seem to occupy a safe middle ground neither leaning towards a considerable empowerment of the Union’s institutions nor towards re-nationalisation in terms of favouring national parliaments. What has to be considered are the different parliamentary systems of the countries at hand. Germany and the UK represent different models of a parliamentary

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system whereas in France the executive plays a pivotal role at the expense of the National Assembly. It is understandable that French MPs and MEPs show no strong tendency to increase parliamentary rights since the national political system is clearly executive-oriented. The same holds true for the UK which also knows the strong position of the Prime minister. Thus the British deputies, driven by their system of parliamentary sovereignty and a strong executive, favour a more intergovernmental Europe. However, our results indicate that the deputies’ position depends very much on the issue. This is in accordance with the conclusion of a recent study on MEPs: “While most MEPs support empowering the EP, they do not so universally or uncritically; moreover, differences between them are explained far less by contextual influences than by representatives’ own political views and their understanding of the representative process” (Scully/Farrell 2003, 285-286). Our results lead to the conclusion that there are no deep-cutting cleavages with respect to these current issues. For MPs and MEPs the political space currently seems quite issue-specific and indeed to an important extent structured according to individual preferences.

6. References Andersen, S. S./ Eliassen, K. A. (eds.) (1996), The European Union: How democratic is it?, London. Corbett, R. / Jacobs, F./ Shackleton, M. (2000), The European Parliament, 4th ed. London. Duncan, D./ Duncan B. (1955), ‘A Methodological Analysis of Segregation Indexes’, American Sociological Review 20, 210-217. Faas, T. (2003), ‘Europa, wie es den Bürgern gefällt? Positionen von Wählern, Parteien und ihren Europa-Abgeordneten im Vergleich’, in: F. Brettschneider/J. van Detz/E. Roller (eds.), Europäische Integration in der öffentlichen Meinung, Opladen, 395-422. Franklin, M.N. / S.E. Scarrow (1999) ‘Making Europeans? The Socializing Power of the European Parliament’, in R. S. Katz and B. Wessels (eds.) The European Parliament, the National Parliaments, and European Integration, Oxfords, 45-60. Gabel, M. J./ Hix S. (2002), ‘Defining the EU Political Space: An Empirical Study of the European Election Manifestos, 1979–1999’, Comparative Political Studies 35, 934–964. Gaffney, J. (ed.) (1996), Political Parties and the European Union, London. Goetz, K. H./ Hix S. (eds.) (2000), ‘Europeanised Politics? European Integration and National Political Systems.’ Special Issue, West European Politics 24(4), 1-26. Green Cowles, M./Caporaso, J. / Risse T. (eds.) (2001), Transforming Europe. Europeanization and Domestic Change, Ithaca, NY. Hix, S. (1999), ‘Dimensions and Alignments in European Union Politics: Cognitive Constraints and Partisan Responses’, European Journal of Political Research 35, 69–106. Hix, S. (2003), The Political System of the European Union, Basingstoke: Macmillan. Hix, S./ Lord, C. (1997), Political Parties in the European Union. Houndmills.

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Holzhacker, R. (2002), ‘National Parliamentary Scrutiny over EU Issues.’ European Union Politics 3: 459–479. Hooghe, L./Marks, G./Wilson, C. J. (2002), ‘Does Left/Right Structure Party Positions on European Integration?’ Comparative Political Studies 35, 965–989. Katz, Richard (1999), ‘Role Orientations in Parliaments’, in: R. Katz/B. Wessels (eds.), The European Parliament, the National Parliaments and European Integration, Oxford, 61-85. Katz, R. S./Wessels B. (eds.) (1999), The European Parliament, the National Parliaments and European Integration, Oxford. Kreppel, A./ Hix S. (2003), ‘From 'Grand Coalition' to Left-Right Confrontation: Explaining the Shifting Structure of Party Competition in the European Parliament’, Comparative Political Studies 36, 75-96. Ladrech, R. (1996), ‘Political Parties in the European Parliament’, in: J. Gaffney (ed.), Political Parties and the European Union. London, 291-307. Mamadouh, V./ Raunio T. (2003), ‘The Committee System: Powers, Appointments and Report Allocation’, Journal of Common Market Studies 41, 333-351. Marks, G./ Wilson C. J. (1999), ‘National Parties and the Contestation of Europe’, in: T. Banchoff/ M.P. Smith (eds.), Legitimacy and the European Union, London, 113-133. Marks, G./ Wilson C. J. / Ray L. (2002), ‘National Political Parties and European Integration’, American Journal of Political Science 46, 585–594. Maurer, A. (1999), What next for the European Parliament ?, London. Maurer, A. (2002), Parlamentarische Demokratie in der Europäischen Union : der Beitrag des Europäischen Parlaments und der nationalen Parlamente, Baden-Baden. Maurer, A./ Wessels W. (2001), National parliaments on their ways to Europe: losers or latecomers? Baden-Baden. Norton, P. (ed.) (1996), National Parliaments and the European Union, London. Pollak, J./ Puntscher Riekmann, S. (2002), ‘Small States and Big States in the European Union’, in: G. Bischof/A. Pelinka, Austria in the EU – a first evaluation after five years (Contemporary Austrian Studies Vol. X) New Brunswick, 67-91. Pollak, J./ Slominski P. (2003), ‘Influencing EU-politics? The Case of the Austrian Parliament’. Journal of Common Market Studies 41(3), 707-29. Raunio, T. (1999), ‘Always One Step Behind? National Legislatures and the European Union’, Government and Opposition 2, 180-222. Raunio, T./ Hix S. (2000), ‘Backbenchers learn to Fight Back: European Integration and Parliamentary Government’, West European Politics 23, 142-168. Raunio, T./ Wiberg M. (2000), ‘Parliaments' Adaption to the European Union", in: P. Esaiasson/K. Heidar (eds.), Beyond Congress and Westminster: The Nordic Experience, Columbus, 344-364. Ray, L. (1999), ‘Measuring party orientations towards European integration: Results from an expert survey’, European Journal of Political Research 36: 283-306. Scholl, B. (2003), ‘Wie tragfähig ist die neue institutionelle Architektur der EU? Der Verfassungsentwurf des Konvents im Spiegel nationalstaatlicher Präferenzen’, Integration 3, 204-217. Scully, R./ Farrell, D. M. (2003), ‘MEPs as Representatives: Individual and Institutional Roles’, Journal of Common Market Studies 41, 269-288. Taggart, P. (1998), ‘A touchstone of dissent: Euroscepticism in contemporary Wester European party systems’, European Journal of Political Resarch, 35, 363-388. Thomassen, J./ Schmitt H. (1999), ‘Partisan Structures in the European Parliament’, in: R. Katz/B. Wessels (eds.), The European Parliament, the National Parliaments and European Integration. Oxford, 129-148.

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Weßels, B. (2003), ‘Parlamentarier in Europa und europäische Integration: Einstellungen zur zukünftigen politischen Ordnung und zum institutionellen Wandel der Europäischen Union’, in: F. Brettschneider/J. van Deth/E. Roller (eds.), Europäische Integration in der öffentlichen Meinung, Opladen, 363-394. Wessels, W./ Maurer A./ Mittag J. (2001), Fifteen Into One? The European Union and Its Member States, Manchester.

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Publicized Discourses on the Post-Nice Process Andreas Maurer1

1. Public Discourse in Context: Legitimacy and Democracy in the EU The proliferation of transnational policy-making has crucial implications for traditional conceptions of democracy, throwing up questions about the legitimacy of governance beyond the state. The shift of competencies and political authority from national and sub-national institutions to supranational governance without adequate authorization, representation and accountability has been criticized from different perspectives for causing a ‘democratic’ deficit (Williams 1991; Føllesdal/Koslowski 1998; Beetham/Lord 1998). With the expansion of the EU's competence into areas of greater overt political sensitivity for states and citizens, as well as a growing Euroscepticism among the EU's citizenry, the democratic deficit has developed further as the leitmotif for current debates about the future of European integration. The legitimacy debate is no longer limited to the domain of heated controversies among scholars of European integration studies: It was also one of the key driving forces behind the decision of the European Council at Laeken to establish a Convention on the Future of Europe by March 2002 (European Council 2001). Many contributions to the debate on the EU’s legitimacy crisis focus in fact on the deficiencies of input-legitimization, i.e. the so-called democratic deficit. Democracy is here defined as the ‘institutionalization of a set of procedures for the control of governance which guarantees the participation of those who are governed in the adoption of collectively binding decisions’. (Jachtenfuchs 1998: 47) Of course, this definition does not automatically induce democracy to be synonymous with parliamentary majority vs. minority government. At least theoretically, there are many ways to secure the participation of the citizenry in governing a given polity. But if we turn to the evolution of the EU over the last decades, we observe a trend: The search to establish some kind of representative governance structures, in which institutions aggregate participation needs and try to fulfil their 1

SWP Berlin, [email protected].

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general function as arenas and rules for making binding decisions, and for structuring the relationship between individuals in various units of the polity and economy. Legitimacy in the EU context is here understood as a generalized degree of trust on the part of the addressees of the EU’s institutional and policy outcomes towards the emerging political system. A political system which is entitled to limit national sovereignty and which is enabled to take decisions directly binding the residents of its constituent Members without the prior and individual assent of each national government requires more than the formal approval of founding treaties and their subsequent amendments. In Weiler’s terms (Weiler 1993), a political system like the European Union needs above all social legitimacy- the willingness of minorities to accept the decisions of the majority within the boundaries of the EU’s polity. Social legitimacy supposes that decisions which are not taken by unanimity or consensus at all levels of and at every stage in the policy cycle have to be based on a broad acceptance of the system (Shackleton 1998: 130-134). Even if the citizenry of the EU polity is not fully aware of, or interested in, the way that binding decisions about their way of life are taken, the system and the institutions which deliver the law must be aware of the risk that the public attitude towards it can shift from some kind of a ‘permissive consensus’ or ‘benevolent indifference’ to fundamental scepticism. The social legitimacy of governance can be derived from historically and geographically contingent sources. With regards to the analysis of the governance in the European Union – and bearing in mind its novelty as a social and political construct, and the changeability of its geographical boundaries-, Scharpf’s (1970; 1999) distinction of output (government for the people or effective performance) and input legitimization (government by the people or representivativeness) has been widely used, irrespective of some terminological variations. In this context a third legitimating factor is often highlighted- the emergence of communitarian cohesion or civic identity. At the heart of the democratic deficit lies an argument, which posits a growing mismatch between, on the one hand the powers exercised in and through EU institutions, fora and procedures, and, on the other, the channels, structures and sanctions by which to influence and control the formulation and implementation of policy. The EU’s institutional design faces a multitude of questions as to how representative this system of multi-level governance is, in which way its quasi-executive branches – the Council and the Commission – and their surrounding net of Committees, working groups, informal meetings – are accountable to the citizens, and how democratic the decision-making procedures between the Union’s legislative authorities are. The presumed lack of linkage and control applies not only to supranational but also to national actors, most notably governments,

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which are seen as removed from parliamentarian or public scrutiny when operating at the European level. In this sense, the lack of control over government-like institutions firstly at the national and secondly at the European level – the Council of the EU – generates a ‘double democratic deficit’. Drawing on the idea that communitarian cohesion is a pre-requisite for any legitimate system, some authors meanwhile claim to have identified a further facet of the EU’s democratic deficit; they argue that current (or future) levels of integration presuppose the existence of a European ‘demos’. Certainly evidence of a transnational identity within the Union is weak and the chances of creating one in the near future seem bleak because of the lack of intermediary structures and agents (transnational parties, media, common language etc.). However, the missing ‘demos’ is not a prerequisite for democratic governance in the EU system, but an ideal product of successful integration and institutional design. In other terms, the ‘demos is constructed via democratic ‘praxis’. [...] Instead of ‘no EU democracy without a European demos’, we have ‘no European demos without EU democracy’’ (Hix 1998: 65). In this respect, we refer to Habermas’ analysis. He argues that: ‘the ethical-political self-understanding of citizens in a democratic community must not be taken as a historical-cultural a priori that makes democratic will-formation possible, but rather as the flowing contents of a circulatory process that is generated through the legal institutionalization of citizens’ communication. This is precisely how national identities were formed in modern Europe. Therefore it is to be expected that the political institutions to be created by a European constitution would have an inducing effect’ (Habermas 1995: 306-307).

But are the institutions able to improve input-legitimization and gradually construct a European demos via institutional reform and para-constitutional conventions? The democratic deficit has not vanished with the establishment of the European Parliament and its extended competencies, not least because of the way it is elected (e.g. little public salience of election campaign, low levels of knowledge and interest, and low voting turn-out) and regarded by the citizens of the Union. In fact, it seems that the more the Parliament is given formal power by Treaty revisions, the less support it gets from the general public in the following elections. It appears there are limitations as to what can be achieved through new or improved electoral arrangements for Europeans’ participation in the democratic process. Focusing on the parliamentary input structures of the Union is only one of several ways in which governance ‘beyond the state’ (Jachtenfuchs/KohlerKoch: 1996) might gain legitimacy. It is clear, however, that there are normative as well as structural reasons why European integration cannot head towards the establishment of nation-state-like government structures.

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2. Public Discourse as a Legitimizing and De-legitimizing Force The existence of public discourse may be understood as a constituent part of a well-functioning participatory democracy. In systems of democracy where decisions are theoretically reached on the basis of reasoned, deliberative argument, just as in those where different ideas and interests are seen to compete aggressively with one another, public discourse has an interactive function, actively connecting ‘the governed’ with the ‘governors’: it can shape the agenda for political action, and can help the digestion of political action when it has occurred. It therefore acts alongside and beyond the formal democratic act of voting, and may be key to preventing a slide into ‘permissive indifference’ and from there into a fundamental scepticism towards the political system. Understood in this way, public discourse is instrumental in efforts to foster input legitimacy (by facilitating government by the people) and output legitimacy (by raising awareness of effective government). Further, engagement in public discourse can ideally engender communitarian cohesion or civic identity. Since democratic political systems are based on processes of societal self-organisation, this integrative social dynamic is essential to their stability. Yet even in established democratic systems, public discourse can act as a threat to the state’s legitimacy. This threat comes not only from direct attacks on the quality of political action and the political system, nor indeed from discourse highlighting the absence of communitarian cohesion: the existence of public discourse may prove detrimental to the quality of political output itself. The quality of political action can depend in large part upon the normative checks to the democratically expressed will of the majority. Government and parliament must seek to discern the ‘public good’, even if this differs from that expressed in public discourse. The politicization of sensitive policy areas through public discourse may cut down policy-makers’ capacity to govern in –what they deem- the best interests of the public. Policy-makers usually respond to this dilemma by finding a balance between the following options: the restriction of public discourse; the active shaping of public discourse; the escape from public discourse. In other words, policymakers can seek to restrict freedom of speech; similarly, they can shape it by, for example, controlling what information the public receives on a particular issue; finally, they can seek out new, low-key venues for policy-making or formulate policies in such a manner that they will not attract public attention. The dilemma posed by the capacity of public discourse both to add and detract from a political system’s legitimacy is particularly acute with regard to the EU. One reading of the neo-functionalist (Haas 1964) understanding of European integration might even argue that the elite-driven process of integration actually de-

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pends to a degree upon the functionalisation of policy areas, the cultivation of a culture of permissive indifference and the avoidance of public discourse. However, as alluded to above, the growth of the EU’s competencies into areas of greater political salience has rendered increasingly unsuitable the output-based model of legitimization upon which European integration has traditionally relied. Nevertheless, rather than rethinking traditional modes of legitimization in order to suit an entirely new political construct like the EU, policy-makers have increasingly relied upon (eighteenth and nineteenth century) means of legitimization which were applied in the development of nation-states. The EU subsequently faces the problem that its political system, in its existing form, may not be able to survive the growth of public discourse even when mediated through current mechanisms for gaining legitimacy. The following explores recent developments in, and interactions between, these three elements- the EU’s political system, public discourse, and mechanisms for garnering legitimacy. It then specifically evaluates the possible role of the media in this context.

3. The Perceived Utility of Different Forms of Public Discourse in the EU Context The driving force of European integration is the continuous search for problemsolving capacities in specific policy areas without explicitly considering the mode of appropriate government structures. This is why an important part of the legitimacy building of the EU is rooted in its ability to effectively solve policy problems (output) with an emphasis on minority preferences. In many cases this means finding solutions that satisfy minorities, but these solutions have to be constructed in such a way that they are not opposed by a majority. Over the past years, increasing emphasis has been put on so called deliberative and discursive elements of democracy theory with a view to increasing citizens’ input as well as for improving performance in highly differentiated modern societies. With respect to the European Union, some scholars have stressed the importance of public debate, discussion, and deliberation in terms of resolving the legitimacy dilemmas of European governance (Scharpf 1998; Eriksen/Fossum 2000b). Within this new strand of debate, one can broadly distinguish between three approaches to political communication: ● Top-down communication, which revolves around an analysis of how transparent, open, and effective EU institutions and member states communicate with European citizens (Lodge 1994; Gramberger 199; Bunyan 1999; Meyer 1999).

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Bottom-up communication which focuses citizens’ and interest groups’ ability to participate in the EU’s policy cycle (Della Sala/Wiener 1997; Nentwich 1996). ● Discursive approaches emphasize the two-way flow of information between governance, intermediary structures, and citizens. One group of authors draws on discourse-ethical conceptions to explore the rules of the communicative process in order to promote communicative rather than strategic rationality (Risse-Kappen 1996; Joerges/Neyer 1997; Eriksen/Fossum 2000b). A second group has been concerned with analyzing the capacity of intermediary structures, especially the media, to induce and shape EU-related political debate (Gerhards 1993; Wiener 1998; Schlesinger 1999). In comparison to formalized means of participation, the first apparent advantage of public discourse as a multiple-way process is the avoidance of institutionalizing veto power. Communicative designs provide none of the current or future participants in the political process with any additional rights to stall, procrastinate, or veto proposed decisions beyond the formal procedures currently foreseen by the treaties. In fact, theorists of deliberative democracy maintain that the promotion of arguing over bargaining encourages more effective decisionmaking (Risse-Kappen 1996, 2000; Eriksen 2000: 59-61). Participants are more likely to reach optimal solutions, because they share not only information freely but also a common frame of reference, while lowest common denominator outcomes are more likely in negotiations in which strategic rationality and bargaining dominate (Risse 2000). In addition, discursive approaches emphasize the gains in knowledge and policy know-how, if the arena of participants and the channels for feed-back are widened. This would help to recognize negative sideeffects of decisions early on in the decision-making process, preventing costly procrastination, adjustment, or termination of policies during or after the implementation phase. At the same time, public discourse offers a means of overcoming the representativeness dilemma associated with formal electoral procedures. Indeed, voting is just one procedure of linking public preferences with governance, not its essence. As Dahl pointed out, ‘democracy cannot be justified merely as a system for translating the raw, uninformed will of a population majority into public policy’ (Dahl 1994: 30). He emphasizes that ‘each citizen ought to have adequate and equal opportunities for discovering and validating (within the time permitted by the need for a decision) the choice on the matter to be decided that would best serve the citizen’s interest’ (1989: 112). From this perspective, formal procedures of aggregating and projecting preferences into the political systems are little more than empty shells if citizens are not able to form an enlightened opinion about political affairs.

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Turning the argument around, however, one may ask whether these deliberative elements alone can suffice? There are discernible differences between those who see the deliberative element as an essential part of a – transnational – democratic society and those who want to stress that it is merely a supplement; for example Saward: ‘Advocates often contrast deliberative and merely ‘aggregative’ traditional democratic theory (Miller 1993); in the former, citizen preferences are forged through a process of structured debate focused on the need to realize the common good, while the later, unrefined and perhaps uninformed preferences are merely counted up to produce public policy.’ (Saward 1998: 64) However, he underlines, ‘the ‘deliberationist’ concerns are in fact rather narrow. No matter how much deliberation takes place, heads have to be counted – ‘aggregative’ – at some point if a democratic decision is to be reached. No adequate model of democracy can fail to be aggregative. There is no such thing as deliberative model of democracy, despite efforts like Cohen’s to construct one. What we can see is an effort to increase public deliberation on policies within a larger ‘aggregative’ framework of constitutional democratic provisions’ (Saward 1998: 64). Irrespective of whether one subscribes to the school of the essentialists or the complementarists regarding the role of public discourse and deliberation, there can be little doubt that more intensive, inclusive and transnational discussions about issues of European policy among those affected by it are an opportunity to test whether these instruments generate more legitimacy in the EU. Whether these deliberations within the EU could or should be modelled on Habermasian discourse ethics is open to debate. For those who see deliberative democracy as a means for smaller units (groups, segments of society) of the people to rule themselves, the EU presents a veritable problem since so many decisions are taken on a supranational level where participation on a regular basis for the common citizen is even more difficult than at the national level. On the other hand, if the emphasis is placed on group communication, deliberative approaches include valuable ideas on how to bridge the dilemma of representativeness and effectiveness of European governance.

4. Political System Development and Legitimacy: The Actual Role of Public Discourses The Media Tenor International Quarterly, in January 2001 analyzed reporting on the EU since 1998 and showed alarming characteristics. According to the MT findings, the treaty of Nice “might not have been the widely expected success, but it once again confirmed the yet unbroken trend, combining further enlargement

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with still further political, social and economic integration.” Less than 5 percent of all news reports analyzed in the study focused on the EU, often featuring topics of no particular interest to the general public. The study pointed to four features in the reporting on the European Union: 1. A general concentration on only one European topic a time. A result of this mono-thematic reporting is a so-called "band- waggon effect": Once a topic has grasped the interest of journalists, other EU topics also receive greater attention in the media. An explanation for this might lay in the fact that contributions on the EU are not a continuous feature in most media (unlike domestic politics), so that individual events immediately redirect media interest towards the entire complex of European themes. 2. A lack of continuity in the reporting about EU topics and personalities. 3. National media report about the EU and its institutions just as they would about any other international event. The EU is seen as another "foreign country" – the 26th member state. The tendency to report about the EU in terms of foreign policy is not only due to the media. Politicians of each member state (and sometimes of the EU institutions themselves) greatly contribute to this situation. It appears to be a relatively easy way to gain diplomatic glamour and international success, or to document the fight for national interests and play ‘two-level games’. 4. ‘Scandal’ is often the decisive aspect for presenting an EU story. Media often neglect to focus on the impact of EU decisions on every day life.       *++,#-..* 42

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Against these findings, the Convention on the Future of Europe might be seen as a response to address legitimacy-concerns through the introduction of new opportunity structures and arenas to facilitate public debates about the EU. Hence the proponents of the Convention method highlight the potential for increasing the participation of civil society in the formulation of a fresh constitutional basis of the European Union. Yet, the precedent of EU policy-making shows that EU-led efforts to involve or co-opt civil society actors are not always beneficial to the quality of public discourse: Even those NGOs engaging in ‘contentious politics’ may be reluctant to criticise the EU for fear of jeopardizing a privileged position in policy-making, or indeed a lucrative source of funding. The involvement of civil society actors is therefore no guarantee of public discourse. The question then is to what extent the process is open and responsive to the participation of actors from different areas of civil society. The key element of the Convention is the open and transparent mediatisation of its actors, deliberations and questions. The wide publicity of the process could potentially open up channels for the participation of national and sub-national actors, who either possess the resources or the clout to play a role in European policy-making networks. To the extent that the Convention will stimulate an intensification and convergence of public discourses, in particular across national publics, the debate on the Convention could lead to a rise in input legitimacy. Matrix 1: Possible Discourses on European Policy Making |   8  > !

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The key question will be whether the Convention process will lead to a synchronization and convergence of public discourses as a key element for a deeper discussion on prerequisites for developing the legitimacy and the effectiveness of the EU system (Scharpf 1997; Habermas 1998; Lijpart 1999). Matrix 2 sketches possible outcomes with regards to the impact of the Convention process on public discourses. Do the debates and mediatised events give enough incentives for creating or – via the media – reconstructing a European sphere of publics (Kevin/Schlesinger 2000) in which the processes and events on the EU-level serve as common points of orientation both for the timing as for the substance of publicized discourses (‘Grand debate Europe’)? Or are we witnessing several national debates on different European themes such as the roles of parliaments or the logic behind a reformed hierarchy of norms without being explicitly linked on a cross-national basis by those involved (‘Europeanized debates’)? Or will we witness no (‘Europe à huis clos’) or isolated national debates without any direct feedbacks to EU events (‘nationalized debates’)? Matrix 2: Scope of publicized debates At the European level At the National level

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C : Europeanized debates

D : Europe à huis clos

5. From Public Discourse to Publicized Discourse: How the Mass Media Matter The news process is not a neutral one. (Lippmann 1922; Lazarsfeld/Merton 1957) Rather, media have an important legitimization function within political systems, particularly within democracies, where the media's own legitimate status allow them to confer authority upon issues, institutions and individuals. Therefore, media coverage of the European Union has the ability to contribute to the image of the EU as a legitimate source of political power. News media legitimate political systems and processes by constructing the image of authority and accountability that structures of governance require to retain the support of their publics. In the 1940s, Lazarsfeld and Merton described how status-conferral was a key “social function of the mass media”, writing: „The

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mass media bestow prestige and enhance the authority of individuals and groups by legitimizing their status.” (Lazarsfeld/Merton 1957: 461) Later, Gans concluded that, “...the news upholds the legitimacy of holders of formal authority as long as they abide by the relevant enduring values, both in public and private realms”. (Gans 1980: 60-61) As Ericson, Baranek and Chan have more recently pointed out: “...news is crucial to the constitution of authority in the knowledge structure of society, even if its veracity and contributions to understanding are in doubt. Resources have to be devoted to newswork if one wants to be recognized as an authorized knower, if one's organization wants to both promote and protect its image as accountable, if legitimization work is required to respond to and sustain the myths of one's institutional environment.” (Ericson/Baranek/Chan 1989: 23) The frequency, placement, type, and tone of coverage of particular political institutions or processes, indeed the very selection of stories and sources, contribute to their credibility and status. In short, news media coverage influences the mediation of policy processes and the legitimization of politics and their output. EU politics are no exception. The implications for public discourse are therefore considerable. As Franklin points out: “Few citizens now have direct knowledge of political matters independent of media” (Franklin 1994: 11) News media are not only a principle source of information about government, but they are also linked to elite and public opinion formation (Dahlgren 1993), both of which are crucial to the political legitimization process. In addition, studies within the field of agenda setting have shown that public knowledge and beliefs are at least in part a function of news media coverage (Mc Combs/Shaw 1972: 176-185), particularly when the subject of news is less well understood by its audience, such as is the case with EU politics. The media can thus act as a non-neutral channel between policy-makers and public, affecting the content and form of public discourse, the way that it this discourse is transmitted to elites, and finally the way that political output is digested by the public.

6. Theories of EU Governance: Finding a Place for News Media Theorizing about the European Union has emphasized the central role of interest formation to EU governance. Indeed, work within both international relations and comparative politics has resulted in two major developments that point in this direction. Recent theoretical work has repeatedly pointed to the socially constructed nature of identity and interests. (Adler/Haas 1992: 367-390; Wendt, 1994: 384396) Different visions of interest formation are therefore important to our understanding of public discourse, its relationship with the EU’s efforts to gain legiti-

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macy, as well as the media’s specific place in this relationship. These competing visions reach different conclusions about which arenas preferences are formed in –and thus about what kinds of public discourse are of relevance, as well as about how this discourse will develop. Similarly, different theories of the political system prescribe different ways for the EU to gain legitimacy. Liberal intergovernmentalism has emphasized the role of state interests as decisive for EU policy-making. (Moravcsik 1991: 19-56; Moravcsik 1993: 473542) Both liberal intergovernmentalism and (neo-)realist thinking conceive the sovereign nation-state as the authoritative actor in cross-border interaction. (Waltz 1979; Evans 1986; Volgy/Imwalle/Schwarz 1999: 246-262) Although various intrastate actors participate in the making of political decisions, the nation-state is identified as a unified defender of clearly defined interests and preferences. (Grieco 1988: 494) Accordingly, the EU and its institutional set-up are products of a general strategy of national governments and their administrations to gain and to keep influence vis-à-vis other countries. (Grieco 1988: 85-587; Link 1998) ‘The fundamental goal of states in any relationship is to prevent others from achieving advances in their relative capabilities’. (Grieco 1988: 498) Unlike classic realism, the liberal intergovernmentalist variant of neo-realism focuses on the construction of national preference building: ‘National interests are […] neither invariant nor unimportant, but emerge through domestic political conflict as societal groups compete for political influence, national and transnational coalitions form, and new political influence, national and transnational coalitions form, and new policy alternatives are recognized by governments.’ (Moravcsik 1993: 481) The analysis of the configuration of national interests therefore includes a consideration of how groups of actors beyond the core of governments and administrations steer the definition or – as regards public discourse – the background of interests and preferences: ‘Groups articulate preferences; governments aggregate them.’ (Moravcsik 1993: 483) Liberal intergovernmentalism therefore shares the (neo-)realist assumption of the centrality of member states’ actors within the EC/EU and it explicitly ‘denies the historical and path dependent quality of integration’, (Moravcsik 1995: 612613) which neo-functionalism stresses as the rationale behind the very process of ‘supranational governance’2 in the European Union. In following these assump2

See Stone Sweet/Sandholtz 1998: 5, who view “intergovernmental bargaining and decision-making as embedded in processes that are provoked and sustained by the expansion of transnational society, the pro-integrative activities of supranational organizations, and the growing density of supranational rules”. Consequently, they argue, “these processes gradually, but inevitably, reduce the capacity of the member states to control outcomes”.

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tions few national institutions would become strong multi-level players, most would simply have to play the role of strong national actors. However, the approach of multi-level governance has questioned the extent to which the nation-state represents a boundary of influence in the creation of interests and thereby excludes inputs from the European level. (Sbragia 1992; Sandholtz 1993: 1-40; Marks/Hooghe/Blank 1996: 341-378) In view of the major approaches within the modern (i.e. post-1989) school of multi-level governance, the EU polity is seen as a ‘post-sovereign, polycentric, incongruent’ arrangement of authority which supersedes the limits of the nation-state. (Schmitter 1996: 136) Assuming a non-hierarchical decision-making process, the EU does matter but only as one realm of collective decision-making and implementation. In other words, ‘policy-making in the Community is at its heart a multilateral inter-bureaucratic negotiation marathon’. (Kohler-Koch 1996: 367) Given that formal and informal networks (Héritier 1996: 149-167) among different groups of actors are the decisive arenas for decision-making, formal rules are generally seen as a less important factor. From the perspective of this school of thought, member states are not seen as unified actors. Rather, they are viewed as arenas of collective decision preparation and implementation, thus indicating a new stage for both administrations and for the state. European governance therefore contributes to a ‘decrease in the unilateral steering by government, and hence an increase in the self-governance of networks’. (Kohler-Koch 1996: 371) National actors follow a plurality of different adaptation strategies and so we would expect to see weak and strong multi-level players. In any case the monopoly of the state in steering this process would wane. Accordingly, one could expect an ‘erosion’ of the traditional focus of media on the nation states and a shift of attention towards overlapping – complex – authority structures and divided loyalty configurations. We would then discover a ‘post-modern state’ (Caporaso 1996: 29-52) in a ‘postnational constellation’ (Habermas 1998: 94-96). Thus, this strand of thinking would argue that the relationship between public discourse and preference formation –as well as the media’s particular role in this process- must be understood in a context ‘beyond the nation-state’. Theories of new institutionalism have emphasized the 'role of ideas' in policymaking and politics. (Bulmer 1996: 217-240; Pollack 1996: 429-458; Hall/Taylor 1996: 936-957) Despite these theoretical inclinations, research agendas designed to explore interest, identity, or ideational formation remains limited. Sinnott has shown that careful attention to European integration theory, particularly as it has developed since the 1980s, provides clues that the study of news media is relevant to understanding EU politics. (Sinnott 1995: 11-32) He has done this by pointing

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out the importance of political culture variables within EU development. Because of the legitimization function of media, news media are both a source and recipient of such variables and therefore involved in the formation of interests within a political system. Moreover, political culture – and its articulation – have gained resonance within the study of the European Union in large part due to the perceived end of the 'permissive consensus' (Lindberg/Scheingold 1994: 297-299) about European integration. The presumption of 'permissive consensus' had always offered those responsible for making EU policy a diffuse (albeit passive) public support for the EU and European integration; its demise since the early 1990s has brought to an end a period of consensus about EU governance exclusively by elites. (Hayward 1995) As Slater has pointed out, “a viable political community needs the allegiance of its mass public as well as that of elites”. (Slater 1994: 155) Within the study of EU politics, public opinion and discourse have been brought 'back in' in recent years (Sinnott 1995: 11-32), establishing the centrality of opinion in the integration process and indicating a relevant position to political culture variables in opinion-formation. Of course, the case could be made that the need for 'the public' was not a factor in the EU from the outset (in part because of the EU's status as an arena of foreign policy3), but rather became one only decades into the EU's existence – as a result of events after 1985 and particularly after 1991. As Sinnott argued, elites, structures, and processes are still central explanatory elements in EU governance, but “...the emphasis on elites was too narrow...and needs to be incorporated in a broader perspective which gives adequate attention to public opinion and political culture”. (Sinnott 1995: 25) Arguably, this broader perspective includes news media. While the analysis of news media can not explain elite and public opinion, in the sense of quantifying media's impact on opinion (or vice-versa), it is still possible to assume that media both shape and reflect the understanding of politics in the public sphere. This is of particular relevance to arguments about the ‘Europeanization’ of public discourse, and the idea that new or post-national forms of governance require specific forms of discourse if they are to gain legitimacy (see Meyer 2005 for a recent overview). Thus, in order to explore the question of legitimacy in EU politics, it is useful to explore the communication of those politics in the news media. In the light of the above discussion of the 3

See Dalton/Duval 1986: 133. Dalton and Duval take this argument to the extreme, arguing that “the public events that compromise the foreign policy environment are relatively easily manipulated by political elites”, even if they qualify this to a short-term influence.

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relationship between public discourse and legitimacy in the EU context, our analysis of EU media coverage took the following into account: 1. The degree to which the EU figured in mediatised discourse 2. The tone of the coverage (positive or negative) 3. The degree to which coverage was ‘Europeanized’ (measured in terms of a thematic convergence, or a rise in number of non-national or EU actors mentioned).

7. Content Analysis as a Research Method to Explore Publicized Discourses “Content Analysis is a research technique for the objective, systematic, and quantitative description of the manifest content of communication” (Berelson/Lazarsfeld 1952: 18). In addition to this purely quantitative approach, new media research methods offer another – more qualitative – approach with instruments for the analysis of positive and negative connotations in written texts. Content analysis is a tool for determining the presence of certain words or concepts within texts or sets of texts. Research quantifies and analyzes the presence, meaning(s) and relationship(s) of such words and concepts, makes inferences about the messages within the text(s), the writer(s), the audience, and even the culture and time of which these are a part. News media are not only a principle source of information about political decisions, they are also linked to elite and public opinion formation (Dahlgren 1993), both of which are crucial to the political legitimization process. Media both shape and manifest the understanding of politics in the public sphere. In order to explore the question of legitimacy in EU politics, it is useful to explore the communication of those politics in the news media, also because the public discussion of political decisions in the media is vital to modern democracies and “it can reasonable be assumed that the public discourse about supranational governance assumes a decisive role in the process of legitimization of European governance structures” (Jachtenfuchs 1994: 17). The quantitative and qualitative content analysis of newspaper reports from the different European countries will not only be constructive to identify parallelisms or correlations of the European policy cycle of concern and the press reports on this policies but can also help to analyze the perception of European decisions in the different member states, which will have different expressions because of the suggested “non-neutrality” of news coverage. (Lazerfeld/Merton 1971; Mc Combs/Shaw 1972: 176-185) Therefore, media coverage of the European Union has the ability to contribute to the image of the EU as a legitimate political power

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and an effective political system. The general research design (Holsti 1968: 2441) contains the following steps as points of departure for the analysis: ● Is there a parallelism or a direct correlation between the Convention’s ‘real process’ on the European level and the news coverage on the national levels in the United Kingdom, Germany, Austria and France? ● What are the main and specific differences in reporting? Do various criteria or national conditions influence a positive or negative national perception of European decisions, e.g. party-constellations, rate of inflation or level of unemployment...? ● Can we identify groups of countries with similar conditions and similar connotations in press reports? The content analysis of media requires a representative selection of news media, which reflects the European level and influences the public discourse. Therefore, the selection considers high circulation, national-wide appeal, and comparability across national lines as important elements (Hodess 1998: 449-472): The content analysis incorporates news related to the European Union in selected newspapers since the Treaty of Nice in December 2000. For the content analysis of the various newspapers’ articles the comprehensive and selective identification of key terms or of combinations of key terms is indispensable. This kind of lexical coding is used to code, search and analyze documents which use as their source data the words contained in the press reports. This lexical method use computerized content analysis to generate indexes to identify segments. The identified key terms will be used for the analysis of the relevant categories (Groeben/Rustemeyer 1994: 308-326, here 313) of the Convention process and the publicized discourses in the different countries. Additionally positive and negative connotation can be identified and described. For this analysis NUD*IST 5 will be used to construct and modify the tree-structured "Index System". With this option of being tree-structured, the index system will as a taxonomic organizer of the data indexing. The index trees can be rearranged as the understanding of the research project changes. Because of their tree-structuring, index categories can be used to handle structured questions, and cases, such as interviews and press reports.

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A combination of key words could be like the following example of a tree-structured index System: 1st Level:

Political Context / Level (European Union or Member States)

nd

2 Level: 3rd Level: 4th Level: th

5 Level: th

6 Level:

Key figures (Fischer, Jospin....) Issue (Structure of the Union) Institutions (European Parliament,..) Instruments (codecision,…) Connotation (good, bad, …)

..........

............

Three interrelated questions are used to investigate the nature of news coverage. First, how have news media made visible the issue of the European Union and the Convention process? Here, we will concentrate on the frequency of EU news and the themes portrayed in EU coverage. Next, which political actors have been authorized in EU coverage? Media treatment of authority will be explored via the sources presented in EU news. Finally, to what extent have media commented, supported or opposed the issues at stake at a given time period? Taking into consideration both national and supra-national goals in the European sphere, where have news media place themselves on these issues? Here, media opinion on European policy making will be explored through editorials and other news commentary on EU affairs. Given this framework of inquiry, the subproject intended to incorporate news related to the European Union in the following news media: France

Germany

United Kingdom

Austria

La Tribune

Der Spiegel

The New Statesman

Die Presse

Le Figaro

Sueddeutsche Zeitung

The Mirror (The Daily Mirror and The Sunday Mirror)

Der Standard

Le Monde

taz, die tageszeitung

The Observer

Salzburger Nachrichten

Les Echos

Focus Magazin

The Evening Standard (London)

Frankfurter Allgemeine Zeitung

FT Business

Publicized Discourses on the Post-Nice Process

233

The study focuses on three key sequences of the Convention. ● IGC Nice (12/00), ● European Council Laeken (12/01), ● Start of the Convention (3/02). Computer-aided content analysis is particularly helpful when a large amount of textual data (covering an extended period of time) needs to be processed and the interest lies primarily in manifest rather latent content. For example, we could study the lead editorial of a particular newspaper (say, the Guardian), the party platforms before elections, or the annual "State of the Union" addresses by the US President for the topics they address and, thus, monitor changes over time. The key terms, positive or negative connotation, etc. will be selected by using CD-ROMS and other databases of different newspapers, so that it will be possible to catch the relevant articles and identify the inference of policy cycles and media reports in publicized opinion. By using the computerized program QSR NUD*IST 5 (Non numerical Unstructured Data Indexing Searching and Theorizing) the research method will be to search key words, phrases etc. in the selected press reports and to automatically index the results by using a self-created index system for the data. Key terms will be linked and their links will be explored with the data using a flexible optional tree structure for the indexing connections and non-hierarchical index structures. Text will be searched with a pattern-based text search facility, so that text search can be done context-sensitively, to restrict it to documents or passages with any chosen characteristics. Measures of association, including a concordance, which shows the relative position of words to each other in a document, cross-tabulations and correlations between individual words or word groups, sequential plots, which show the use of words and word groups over time, will complete the analysis.

8. Preliminary Findings Until the end of the Nice IGC, media coverage on the Post-Nice Process concentrated on the speeches given by Fischer, Blair and Chirac and focused on the general structure of the European Union. During the preliminary research, we searched articles on the basis of the following items: ● “Avenir de l’Europe”, ● „Avenir [wildcard] Europe“ ● “Future [of] Europe”,

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Andreas Maurer

“Zukunft Europas”, “Post-Nizza”, „Post-Nice“.

To concretize our database further, we narrowed our analysis and searched for articles, which combined the words “Europa/Europe” with possible idea-authors (e.g.. “Europa AND Blair”, „Europe AND Schroeder“, „Europe AND Jospin“). The result was a sample of 97 articles. As to the quantitative analysis, we focused on ● contexts and events, ● themes and ● evaluations.

8.1 Themes The coded articles concentrated on a rather limited number of contributions offered by prime ministers, parliamentarians and Presidents with regard to the debate on the future of Europe. 14 articles did not mention a specific source and related subject, but focused on the more general debate about the EU’s reform process. The remaining articles concentrated on the speeches and contributions given by Tony Blair, Jacques Chirac, Joschka Fischer, Lionel Jospin and the draft European program of the German SPD. 18 news items considered the Humboldt speech by Joschka Fischer, 12 articles the speech by Lionel Jospin and another 8 wrote on the Bundestag speech given by Jacques Chirac. As to the time-related impact of these speeches to the debate on the future of the EU, we need to work on a much wider sample of news coverage. The speeches by Blair, Fischer and Chirac were given in the early summer of 2000, and the items produced by Jospin and the SPD were issued in spring 2001. If we base our analysis on the preliminary data set, we can not identify any cross-national impact of the speeches in news coverage. There is one exemption: The Humboldt-speech by Fischer seems to become an accepted matrix for articles published in late 2000 and 2001. The speech thus became a common reference node for articles that focused on other speeches or documents.

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Publicized Discourses on the Post-Nice Process

Table 1: News Coverage (5/2000-8/2001) on: General Theme/Cross Combinations In Combination with

Blair

Chirac

Fischer

Jospin

Blair

7

Chirac

1

8

2

3

Fischer

2

2

18

1

Jospin

3

1

12

Schröder/SPD

4

Schröder/ SPD

2

PostNice

Prodi

Others

1 4 2 6

Post-Nice

1 14

Prodi

3

Others Total

10 10

17

23

16

11

14

3

13

8.2 National and European Orientations Do the media reconstruct national debates or do they attempt to construct European linkages between different news items? Did the Fischer speech initiate news stories about the speech’s fallout in the country of the respective newspapers or did the media try to open the reader’s eyes for reactions outside their national arena? Overall, the news items under scrutiny developed both a national and a European perspective with regard to their content on the post-Nice process. On average 43,7 % of our sample reproduced a more national, and 56,2 % a more European focus. The British „Guardian“ ranks among those newspapers with an open „national-concerns“ focus. This finding does not only match for articles on speeches given by UK authors, but also for those items that relate to authors from other countries. By contrast, the Austrian „Presse“ and the German „Welt“ produce a more European perspective, while the French „Le Monde“ covers both national and European views. Table 2: News Coverage (5/2000-8/2001) on: National versus European Orientation of Articles (in per cent) FT

Guardian

Monde

Presse

Welt

National

16,6

76,9

55,5

37,1

33,3

European

83,3

23,1

44,4

62,8

66,6

Total of Articles

6

13

18

35

24

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Andreas Maurer

However, if we look at the evolution of orientations over time, we clearly identify a trend towards the creation of more European perspectives.   4*5 4-51    2

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8.3 Values, Connotations and Evaluations Our preliminary data set concentrated on the following parameters for analyzing the issue of values given in news coverage: ● the date of publication of the articles, the authors and the type of the news items (report, comment, opening article, editorial, reproduction of original speeches), ● the ‚general theme’ of the news items. Here we concentrated on two themes : the coverage of names and authors, and the debate on the post-Nice development, ● the perceived ‘vision’ or ‘model’ of the EU within what we call the commented view, ● the expressed ‘vision’ or ‘model’ of the EU within what we call the expressed view, ● the concentration of the news items on a more national or a more European dimension of the issues dealt within the articles, ● evaluations and values given to the subject matter: a) Does the article opt for a more positive or a more negative tone on the question of a future European Constitution (Constitution) ?

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Publicized Discourses on the Post-Nice Process

b) Does the article opt for a more positive or a more negative tone with regard to the creation of some kind of a European two-chamber system (Tone on EP/Council Bicameralism)? c) Does the article opt for a more positive or a more negative tone with regard to the strengthening of national parliaments within the EU’s institutional structure (Tone on NP’s)? d) Does the article opt for a more positive or a more negative tone with regard to the introduction of a clear cut list of competencies (Tone on Competencies)? We coded the articles according to these questions as follows: Negative tones (Negative)

-1

No tones (None)

0

Neutral tones (Neutral)

1

Positive tones (Positive)

2

These indicators were added to give an overall Value-Index, which reflects the relative proximity of each coded media item to the ideas expressed by the different ‘issue-producers’ (speakers etc.). Relatively high numbers indicate the proximity to views expressed in the Jospin-speech and the SPD-Schröder-paper ; relatively low numbers indicate a proximity to views expressed in the speeches given by Blair and Chirac. The index was calculated as follows: Value Index pos. ∑ = Value (aConstitution) + Value (bBicameralism) – (Value cNP) – (Value dCompetencies). As regards the evaluations and positive connotations in view of the creation of a European Constitution, some 15% of the news coverage published in the context of the Fischer speech and the SPD/Schröder paper was rather positive. However, the overall majority of news items remained rather neutral.

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Andreas Maurer

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239

Publicized Discourses on the Post-Nice Process

Interestingly, the question on the future repartition of competencies did not attract the news. This is all the more important for the German debate about this issue, since it did even not initiate a wider germanophone coverage in the media. "     )! / )"    )  /0#..

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If we combine these results towards an overall Value-index, we can identify a clear trend towards an extension of the range of constitutional/institutional ideas over time. Whereas the Value index remained between –2 and +4 during the first phase of the speeches given by Fischer, Blair and Chirac in 2000, it raised towards a range between –3 and +6 during the second phase of spring 2001.

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Andreas Maurer

1  6 
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How can we explain this extension towards a certain ‚flexibility‘ with regard to the expression of values and models? 1. The report authors orient the crucial points of the post-Nice debate according to their perceived readership at more well-known politicians, without ignoring however new aspects in the debate. Actually the range of the European Union 2004-ideas increased over time. 2. The proposals of Jospin and the SPD cause obviously more differentiated evaluations as the debate contributions of Fischer, Chirac and Blair. This is due to the more concrete reform suggestions of the 2001 speeches. The speech of Fischer induced valuations along an ideal pro/anti-federation scale. On the other hand the speeches of Jospin and the suggestions of the SPD party executive committee attracted the journalists to formulate evaluations regarding the institutional structure of the EU (two-chamber system with the Commission as some kind of a government versus the advancement of the European Union on the basis of its present inter-institutional structure). 3. The rapid increase of the ‘raw material’ for the newspapers strikes itself not only an increasing range of the valuations, but also an obviously growing scepticism of the authors concerning the different EU concepts. Thus the comparison between the commented concepts and the expressed views on these ideas indicates a growing concern of journalists with regard to the simple ‘translation’ of the views formulated by the post-Nice-authors. This becomes obvious with regard to contributions, which deal with the concept of the fed-

241

Publicized Discourses on the Post-Nice Process

eration of the national states (French debate contributions, partly also SPD) to argue, as well as with regard to contributions, which concentrate on the concept of an intensified co-operation among some Member States (creation of a Gravitationszentrum/Pioneer Group).

1

1

1

1 1

EU Constitution

Sum of Expressed Visions

Anti-EU Community Method

Second Chamber

Pragmatism

Post Nice

Pioneer Group

Federation of Nation States

Federation

Europe Puissance

Two Chamber System

Expressed Vision

EU Constitution

Commented Vision

Monnet Method

Table 3: News Coverage (5/2000-8/2001) on: Commented and Expressed Visions/Models for Europe

2

2

Two Chamber System

2

1 1

3

1

Europe Puissance

1

Federation

3

1

Federation of Nation States

2

9

1

12

2

5

7

6

9

Pioneer Group

4

0

Post Nice Pragmatism

1

4

2

4

1

6

33 0

Second Chamber

1

None Sum of Commented Visions

2

6

5

1

4

3

3

5

2

14

21

19

6

1 6

18

2

Overall, the post-Nice-debate is documented broadly in the examined media. Even the relatively small sample points on a large interest of the media to pursue and report on the current debate. Since the personalization of the news items is relatively high – the majority of texts is based on speeches given by a politician on the future of Europe – the news are suitable for reader-friendly comments and polarization. Debate contributions issued by institutions – resolutions of the EP, consultation results of national parliament etc. – are hardly taken up. To a large extent the media concentrate on relevant concepts regarding ‘more or less Europe’, ‘more or less European Statehood’. These informations and comments can be transferred to a large extent simply to the anticipated thinking of the readers. The relative simplicity of the topic decreases nevertheless over time, as the sources of news coverage produce more and more concrete details for the development of the

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European Union. Moreover, the sample indicates that above all British media appear as some kind of a ‘translation device’ of British Government conceptions on the future of the EU. In contrast, the German and Austrian media seem to establish an aversion in relation to a purely national oriented reporting, and the French press switches between national and European aspects to the topic.

9. References Abromeit, H. (1998), Democracy in Europe - Legitimizing Politics in a Non-State Polity, Oxford/ New York. Abromeit, H./Schmidt, T. (1998), ‘Grenzprobleme der Demokratie: konzeptionelle Überlegungen’, in: Kohler-Koch, B. (ed.), Regieren in entgrenzten Räumen, Opladen, 293-320. Adler, E./Haas, P. (1992), ‘Conclusion: Epistemic Communities, World Order, and the Creation of a Reflective Research Program’, International Organization, No. 1/1992, 367-390. Beetham, D./Lord, C. (1998), Legitimacy and the European Union, London. Berelson, B. R. /Lazarsfeld, P. F. (1952), The Analysis of Communication Content, Glencoe. Berlin, D./Pag, S./Bourtembourg, C. (1987), The European Administration, Maastricht. Börzel, T. A./Risse, T. (2000), When Europe Hits Home: Europeanization and Domestic Change. EUI Working Paper RSC No. 2000/56, San Domenico. Buchanan, J. M./ Tullock, G. (1962), The Calculus of Consent: Logical Foundations of Constitutional Democracy, Ann Arbor, Mich. Bulmer, S. (1994), ‘The Governance of the European Union, A New Institutional Approach’, Journal of Public Policy, 4, 351-380. Bulmer, S. (1997), New Institutionalism, the Single Market and EU Governance, Oslo: ARENA, Advanced Research on the Europeanisation of the Nation State. Christiansen, T./Kirchner, E. (2000), Committee governance in the European Union, Manchester. Cram, L. (1997), Policy-Making in the European Union: Conceptual Lenses and the Integration Process, London. Dahl, R. A. (1989), Democracy and its critics. News Haven. Dahl, R. A. (1994) ‘A Democratic Dilemma - System Effectiveness and Citizen Participation’, Political Science Quarterly, Vol. 109, No 1, 23-43. Dalton, R. J./Duval, R. (1986), ‘The political environment and foreign policy opinions : British attitudes towards European Integration 1972-1979’, British Journal of Political Science, No. 16/ 1986, 113-134. Della Sala, V./Wiener A. (1997), ‘Constitution Making and Citizenship Practice – Bridging the Democracy Gap in the EU?’. Journal of Common Market Studies, Vol. 35, No. 4, 595-614. DiMaggio, P. J./Powell, W. W. (eds.) (1991), The New Institutionalism in Organisation Analysis, Chicago. Easton, D.(1953), The Political System, New York. Eder, K./ Hellmann, K.-U./Trenz, H. (1998), ‘Regieren in Europa jenseits öffentlicher Legitimization? Eine Untersuchung zur Rolle von politischer Öffentlichkeit in Europa’, in: Kohler-Koch, B. (ed.) Politische Vierteljahresschrift, Special Issue: Regieren in entgrenzten Räumen, Vol. 39, 321- 344. Elster, J. (1998), Deliberative Democracy, Cambridge University Press.

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Eriksen, E. O./Fossum, J. E. (2000a), ‘Post-national integration’, in: Eriksen, E. O./Fossum, J. E. (eds.) (2000), Democracy in the European Union: Integration Through Deliberation? London, 1-28. Eriksen, E. O./Fossum, J. E. (eds.) (2000b), Democracy in the European Union: Integration Through Deliberation?, London. Eriksen, E. O. (2000), ‘Deliberative supranationalism in the EU’, in: Eriksen, E. O./Fossum, J. E. (eds.), Democracy in the European Union: Integration Through Deliberation?, London, 42-64. Erikson, R./Baranek, P./Chan, J. (1989), Negotiating Control: a study of News Sources, University of Toronto Press / Milton Keynes: Open University Press. European Council (2001), Laeken Declaration on the Future of Europe. Press release of the Presidency 15.12.2001; SN 273/01. Evans, M./Davies, J. (1999), ‘Understanding Policy Transfer: A Multi-Level, Multi-Disciplinary Perspective’, Public Administration, No. 2, 361-385. Evans, P. B./Rüschemeyer, D./Skocpol, T. (1986), Bringing the state back in, Cambridge. Fligstein, N. /McNichol, A. J. (1998), ‘The institutional terrain of the European Union’, in: Sandholtz, W./Sweet, A. S. (eds.), European Integration and Supranational Governance, New York, 59-91. Føllesdal, A. (2000), ‘Subsidiarity and Democratic Deliberation’, in: Eriksen, E. O./Fossum, J. E. (eds.), Democracy in the European Union: Integration Through Deliberation?, London, 85-110. Føllesdal, A./Koslowski, P. (eds.) (1998), Democracy and the European Union, Berlin. Franklin, B. (1994), Packaging Politics: Political Communications in Britain’s Media Democracy, London. Früh, W. (2001), Inhaltsanalyse: Theorie und Praxis, 5th edn. Konstanz. Gans, H. (1980), What’s News: a study of CBS Evening News, NBC Nightly News, Newsweek and Time, New York. Garrett, G./Weingast, B. (1993), ‘Ideas, Interests and Institutions: Constructing the European Community’s Internal Market’, in: Goldstein, J./Keohane, R. O. (eds.), Ideas and Foreign Policy. Beliefs, Institutions and Political Change, Ithaca. Gerhards, J. (1993), ‘Westeuropäische Integration und die Schwierigkeiten der Entstehung einer europäischen Öffentlichkeit’, Zeitschrift für Soziologie, Vol. 22, No. 2, 96-110. Gerhards, J. (1997), ‘Diskursive versus liberale Öffentlichkeit: Eine empirische Auseinandersetzung mit Jürgen Habermas’, Kölner Zeitschrift für Soziologie und Sozialpsychologie, 49 (1), 1-34. Gerhards, J. (2000), ‘Europäisierung von Ökonomie und Politik und die Trägheit der Entstehung einer europäischen Öffentlichkeit’, in: Bach M. (ed.), Die Europäisierung nationaler Gesellschaften. Sonderheft 40 der Kölner Zeitschrift für Soziologie und Sozialpsychologie. Wiesbaden, 277-305. Gerhards, J. (2002), ‘Das Öffentlichkeitsdefizit der EU im Horizont normativer Öffentlichkeitstheorien,’ in: Kaelble, H./ Kirsch, M./ Schmidt-Gernig, A. (eds.), Transnationale Öffentlichkeiten und Identitäten im 20. Jahrhundert. Frankfurt 135-158. Göhler, G. (1994), ‘Politische Institutionen und ihr Kontext: Begriffliche und konzeptionelle Überlegungen zur Theorie politischer Institutionen’, in: Göhler, G. (ed.), Die Eigenart der Institutionen: Zum Profil politischer Institutionentheorie, Baden-Baden, 19-46. Göhler, G. (1996), ‘Wie verändern sich Institutionen? Revolutionärer und schleichender Institutionenwandel’, in: Göhler, G. (ed.), Institutionenwandel, Leviathan Sonderheft No. 16, Opladen, 21-56. Gramberger, M. R. (1997), Die Öffentlichkeitsarbeit der Europäischen Kommission 1952-1996: PR zur Legitimization von Integration? Baden-Baden.

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Green Cowles, M./Caporaso, J. A../Risse, T. (2001), Transforming Europe: Europeanization and Domestic Change, Ithaca. Green Cowles, M./Smith, M. (eds) (2000), The State of the European Union: Risks, Reform, Resistance and Revival, Oxford. Grieco, Joseph M. (1988), ‘Anarchy and the limits of co-operation: a realist critique to the newest liberal institutionalism’, in: International Organization, No. 3/1988, 485-587. Groeben, N./Rustemeyer, R. (1994), On the Integration of Quantitative and Qualitative Methodological Paradigms, in: Borg, I./Mohler, P. Ph. (eds.), Trends and Perspectives in Empirical Social Research, New York, 308-326. Haas, P. M.(1992), ‘Introduction: Epistemic Communities and International Policy Co-ordination’, in: International Organization, 46/1, 1-35. Habermas, J. (1989), The Theory of Communicative Action II: Lifeworld and System. A Critique of Functionalist Reason, New York. Habermas, J. (1995), ‘Remarks on Dieter Grimm’s ‘Does Europe need a constitution?’’, in: European Law Journal, Vol 1, No 3, 303-307. Habermas, J. (1996), Between Facts and Norms, Cambridge, MA. Habermas, J. (1998), Die postnationale Konstellation, Frankfurt am Main. Habermas, J (1998), The Inclusion of the Other. Studies in Political Theory, Cambridge. Hall, P. A./Taylor, R. C. R. (1996), ‘Political Science and the three New Institutionalisms’, in: Political Studies, No. 5, 936-957. Held, D. (1991), ‘Democracy, the Nation State and the Global System’, in: Held, D., Political Theory Today, Stanford, 197-235. Held, D. (1991a), ‘Editor’s Introduction’, in: Held, D. (ed.), Political Theory Today, Stanford, 1-21. Hirschman, A. O. (1970), Exit, Voice and Loyalty, Responses to Declines in Firms, Organizations and States, Oxford. Hix, S. (1998), ‘The study of the European Union II: the ‘the new governance’ agenda and its rival’, Journal of European Public Policy, Vol. 5, No. 1, 38-65. Hodess, R. B. (1997), ‘The Role of News Media in European Integration: A Framework of Analysis for Political Science’. Res Publica, No. 2, 215-227. Hodess, R. B. (1998), ‘News Coverage of European Politics: A Comparison of change in Britain and Germany’, in: Jopp, M./Maurer, A./ Schneider, H. (eds.), Europäische Grundverständnisse im Wandel. Analysen und Konsequenzen für die politische Bildung, Bonn, 449-472. Holsti, O. R. (1968), Content Analysis for the Social Sciences and Humanities, London. Hooghe, L./Marks, G. (2001), ‘Types of Multi-Level Governances’, in: European Integration online Papers (EioP), Vol. 5, No. 11. Inglehart, R. (1971), ‘Public Opinion and Regional Integration’, in: Lindberg, L. N./Scheingold, S. A. (eds.), Regional Integration, Theory and Research, Cambridge (Mass.),160-191. Jachtenfuchs, M./Kohler-Koch, B. (1996) (eds.), Europäische Integration, Opladen. Joerges, C./Everson, M. (2000), ‘Challenging the bureaucratic challenge’, in: Eriksen, E. O./Fossum, J. E. (eds.) (2000), Democracy in the European Union: Integration Through Deliberation? London, 164-187. Keman, H. (1997), ‘Approaches to the Analysis of Institutions’, in: Steunenberg B./ van Vught, F. (eds.) Political Institutions and Public Policy: Perspectives on European Decision Making, Dordrecht, 1 - 27. Keohane, R. O. (1984), After Hegemony, Cooperation and Discord in World Political Economy, Princeton.

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Kerremans, B. (1996), ‘Do institutions make a difference? Non-Institutionalism, Neo-Institutionalism and the logic of common decision-making in the European Union’, in: Governance, No. 2/ 1996, 217-240. Kevin, D. /Schlesinger, P. (2000), ‘Can the European Union Become a Sphere of Publics?’, in: Eriksen, E. O./ Fossum, J. E. (eds.), Democracy in the European Union: Integration Through Deliberation? London, 226-229. Knill, C./Lehmkuhl, D. (1999), ‘How Europe matters. Different Mechanisms of Europeanization’, in: European Integration online Papers (EioP) Vol. 3/7. Koh, H. H./Slye, R. (1999), Deliberative Democracy and Human Rights, Yale University. Kohler-Koch, B. (1996), ‘Catching up with change: the transformation of governance in the European Union’, in: Journal of European Public Policy, No. 9, 359-380. Kohler-Koch, B. (1998), ‘Die Europäisierung nationaler Demokratien: Verschleiß eines europäischen Kulturerbes?’, in: Greven, M. T. (ed.), Demokratie - eine Kultur des Westens?Opladen, 263-87. Kohler-Koch, B. (1999), ‘The Evolution and Transformation of European Governance, in: KohlerKoch, B./Eising, R. (eds.), The Transformation of Governance in the European Union, London and New York,14-35. Krugman, P. R. (1991), Geography and Trade. London. Krugman, P. R./Venables, A. J. (1995), The seamless world: a spatial model of international specialisation, London. Lazarsfeld, P./Merton, R. K. (1957), ‘Mass Communication, Popular Taste, and Organized Social Action’, in: Rosenberg, B./White, D.M., (eds.): Mass Culture, New York, Free Press 1957, 457-473. Lebessis, N./Paterson, J. (2000), Developing New Modes of Governance. European Commission. Forward Studies Unit. Working Paper Brussels. Lijphart, A. (1999), Patterns of democracy : government forms and performance in thirty-six countries, New Haven. Lindberg, L. N./Scheingold, S. (eds.) (1970), Europe’s would-be polity, Englewood Cliffs. Lindberg, L. N./Scheingold, S. (eds.) (1971), Regional integration: theory and research, Cambridge Linder, S. H./Peters, B. G. (1995), ‘The Two Traditions of Institutional Designing: Dialogue Versus Decision’, in: Weimer, D. (ed.), Institutional Design, Boston, 133-60. Lippmann, W. (1922), Public Opinion, New York. Lodge, J. (1995), ‘Transparency and Democratic Legitimacy’, Journal of Common Market Studies, Vol. 32, No. 3, 343-368. Luhmann, N. (1981), Politische Theorie im Wohlfahrtsstaat. München/Wien. March, J. G./Olsen, J. P.(1989), Rediscovering Institutions, The Organizational Basis of Politics, New York/London. March, J. G./Olsen, Johan P.(1996), ‘Institutional Perspectives on Political Institutions’, Governance 9:3, 247-264. Marcussen, M. (2000), Ideas and Elites: The Social Construction of Economic and Monetary Union, Aalborg. Marks, G./Hooghe, L./Blank, K. (1996), ‘European Integration in the 1980’s: State-Centric versus Multi-Level Governance’, Journal of Common Market Studies, No. 3/1996, 341-378. Marks, G./Scharpf, F. W./ Schmitter, P. C./Streeck, W. (1996), Governance in the European Union, London et al. Maurer, A./Wessels, W. (2003), ‘The European Union Matters: Structuring self-made Offers and Demands for National Actors and Arenas’, in Wessels, W./ Maurer, A./Mittag, J. (eds.), Fifteen into One? The European Union and its Member States. Manchester, 29-65.

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Mc Combs, M./Shaw, D. (1972), ‘The Agenda-Setting Function of Mass Media’, Public Opinion Quarterly, 36/1972, 176-185. McNamara, K. R. (1998), The Currency of Ideas: Monetary Politics in the European Union, Ithaca and London. Meyer, C.O. (2005), ‘The Europeanization of Media Discourse: A Study of Quality Press Coverage of Economic Policy Co-ordination since Amsterdam’, Journal of Common Market Studies, No.1/ 2005, 121-148.Moravcsik, A. (1991), ‘Negotiating the Single European Act. National Interests and Conventional Statecraft in the European Community’, International Organization, No. 1/ 1991, 19-56. Moravcsik, A. (1993), ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach’, Journal of Common Market Studies, No. 4, 473-524. Moravcsik, A. (1995), ‘Liberal Intergovernmentalism and Integration: A rejoinder’, Journal of Common Market Studies, No. 4/1995, 611-628. Moravcsik, A. (1999), The Choice for Europe, Social Purpose and State Power from Messina to Maastricht, London. Niedermayer, O./Sinnott, R. (1995) (eds.), Public Opinion and Internationalized Governance. Beliefs in Government Vol. II, Oxford. Niedermayer, O./Westle, B. (1995), ‘A Typology of Orientations’, in: Niedermayer, O./Sinnott, R. (eds.), Public Opinion and Internationalized Governance. Beliefs in Government Vol. II, Oxford, 33-50. Norris, P. (2000), A virtuous circle: political communication in post-industrial democracies, Cambridge, MA. Olsen, J. P. (2000), Organising European Institutions of Governance. A Prelude to an Institutional Account of Political Integration, Arena Working Papers WP 00/2, Oslo. Peters, G. B. (1999), Institutional Theory in Political Science. The ‘New Institutionalism’, London and New York. Peterson, J. (1995), ‘Decision-making in the European Union: Towards a Framework for Analysis’, Journal of European Public Policy, Vol. 2, No. 1, 69-93. Peterson, J./Bomberg, E. (1999), Decision-Making in the European Union, Houndmills. Pierson, P. (1998), ‘The Path to European Integration: A Historical Institutionalist Analysis’, in W. Sandholtz/A. Stone Sweet (eds.), European Integration and Supranational Governance, Oxford University Press, 27-58. Pinder, J. (1968), ‘Some Problems of Economic Union in the EEC’, World Today 24, 88-110. Popper, K. R. (1971), Logik der Forschung, Tübingen. Putnam, R. D. (1988), ‘Diplomacy and Domestic Politics: The Logic of Two Level Games’, International Organisation 42, 3, 427-460. Reif, K.-H. (1993), ‘Ein Ende des ‘Permissive Consensus’? Zum Wandel europapolitischer Einstellungen in der öffentlichen Meinung der EG-Mitgliedsstaaten’, in Hrbek, R. (ed.), Der Vertrag von Maastricht in der wissenschaftlichen Kontroverse, Baden-Baden, 23-40. Risse, T. (2000), ‘Let’s Argue!: Communicative Action in World Politics’, International Organization, Vol. 54, No 1, 1-40. Risse, T./Green Cowles, M./Caporaso, J. A. (2001), ‘Europeanization and Domestic Change: Introduction’, in: Green Cowles M./, Caporaso, J.A./ Risse, T. (eds.), Transforming Europe: Europeanization and Domestic Change. Ithaca. Risse-Kappen, T. (1996), ‘Exploring the Nature of the Beast’, Journal of Common Market Studies, Vol. 34, No. 1, 53-80.

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The Ratification of the Constitution and the European Public Sphere Monika Mokre1

1. Introduction The question if the EU is on its way to a form of statehood and – if yes – if this is a positive development has occupied political theorists and practitioners for the last decades. This debate has always been closely linked to discussions of the democratic quality of the EU: If the EU is comparable to an international organisation like the UN or the WTO, then the democratic organisations of its Member States suffices to ensure democracy on the European level – at least, according to the viewpoint of liberal democracy. If, on the other hand, the EU is a state-like polity, more democratic procedures have to be introduced in European policy making (cf. Weiler 1995; Puntscher Riekmann 2001; Weidenfeld 2002). Most contributions to this debate have been driven by the claim for a democratic European Union and, at the same time, by doubts about its democratic quality, summarized under the header “democratic deficit”. This deficit is usually seen in three dimensions, (1) the institutional framework of the EU (see e.g. Rommetsch/Wessels 1996; Brzinski /Lancaster /Tuschhoff 1999; Jachtenfuchs 1994), (2) the lack of a European demos (Kirchhof 1994), and, (3) the lack of a European public sphere (Grimm 1995; Habermas 1995; Gerhards 1993, 99). The debates on the European Constitution and the adoption of this Constitution by the IGC in June 2004 mark a significant step in the debates about the statehood of the EU and its democratic quality. Customarily, the concept of a Constitution is linked to statehood2. The inclusion of a fundamental rights catalogue in the Constitutional Treaty is another symptom of the state-like quality of the EU. And the Draft Constitution of the European Convention not only states in its motto that the

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Austrian Academy of Sciences, EIF, [email protected]. However, also organisations give themselves constitutions, and, in fact, this possible broader understanding of constitutions has been frequently discussed within the EU context, cf. Schneider 2003, 13, and the contribution of Peters in this volume.

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EU sees itself as a democracy3 but was meant to reduce the European democratic deficit both by its contents and by the process that led to its adoption. As far as the content is concerned, the Declaration of Laeken mandated the Convention on the Future of Europe to deal with a better division and definition of competences, the simplification of the Union’s instruments, the means to achieve more democracy, transparency and efficiency. It can be plausibly argued that these goals were achieved by the Constitutional Treaty – although not to the full extent that was hoped for (cf. Maurer 2005). With regard to the constitutionalisation process, a first and important improvement of political procedures in the EU was seen in the Convention that developed the Draft Constitution. This body that is not anticipated by EU primary law should broaden participation in political decision making4. A further way of democratising the EU within the process of constitutionalisation can be seen in the planned ratification by referenda in 10 of the 25 Member States. During the Convention, a group of 97 members, deputy members, and observers called for a ratification by a Europe wide referendum (European Convention 2003). Such a referendum should not only give the final decision on the constitution to the citizens but, furthermore, help to promote a transnational European public sphere. However, this proposal was not carried out due to (1) the unwillingness of many European governments to carry out a referendum, and (2), the many technical difficulties of such a – in primary law not provided for – form of decision making: Should the Constitutional Treaty be understood as accepted when majorities of the citizens in a majority of Member States had approved of it, or, should the principle “one citizen, one vote” be applied, or should double majorities be called for? What would happen when the outcome of a European referendum were favourable to the Constitutional Treaty but failed in a country legally bound to carry out a referendum? Obviously, the solution of national referenda in some Member States and ratification by the parliament in the other ones would not have represented a comparably clear cut commitment to the power of the European people over their Constitution. However, it can be plausibly interpreted as a step towards democratisation in the sense of an inclusion of (at least part of) the citizenry in the process of EU-constitutionalisation. And if one maintains that the possibility of political 3

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“Our Constitution ... is called a democracy because power is in the hands not of a minority but of the greatest number” (Thukydides, II, 37). This motto, however, has been omitted in the final version. On the working, successes, and drawbacks of the Convention see Maurer, Oberhuber, and König in this book.

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participation is an important prerequisite of a political public sphere (cf. Mokre/ Pausch 2005), these referenda should also trigger public discourses on Europe. On the other hand, referenda are always burdened by a high risk of failure, and, furthermore, by the risk of failing due to reasons beyond the issue that is actually called for. The referenda in France and the Netherlands can be understood as a case in point for this judgement. The question, thus, arises, if referenda are a useful tool of democratisation at this stage of European integration. This article will tackle this question by shortly describing (1) different contemporary theories of democracy, (2) the ways in which they shape discussions on European democracy, and (3) patterns of interpretation they deliver for the current situation. Based on these theoretical findings (4) an answer to the question will be attempted if the referenda on the European Constitution were normatively desirable and/ or practically-politically helpful.

2. Democratic Theories and the European Union 2.1 Liberal Democratic Theory Debates on the democratic deficit of the EU started with a critique of the institutional framework of the EU and its representative quality. National members of government, i. e. national executives, become legislators on the European level; the European Parliament is not a full-fledged parliament, and national parliaments are weakened by European integration. (Rommetsch/Wessels 1996; Brzinski J./ Lancaster T.D./ Tuschhoff C. 1999) This critique comes out of a liberal democratic understanding of democracy developed out of the democratic principle to ground political decisions in the will of the citizens and the liberal principle to limit the influence of political institutions and processes in order to affect as little as possible individual freedom of choice. Liberal democracy sees men and women basically as rational individuals who pursue their interests and should be as uninhibited as possible in doing so. This implies, among other things, that the individual, i. e. the citizen, should not be obliged to engage in politics beyond a necessary minimum. Thus, liberal democracy is especially engaged in developing political institutions and processes that warrant a linkage between the citizens and the polity without the claim for politically active citizens. Therefore, mechanisms of political representation are an important focus for liberal democratic thinking. However, adequate democratic representation cannot be envisaged by understanding the citizens as mere individuals. The concept of democracy is based on

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the concept of a demos, i. e. of a political community with a certain cohesion. According to Sartori (1987, 383-386) one can analytically separate the liberal and the democratic element of liberal democracy by defining as the fundamental difference that “liberalism pivots on the individual, and democracy on society (384)”, and, thus, on social cohesion. While the existence of sufficient social cohesion of the people (and, thus, of a demos) is mainly undisputed for nation states (although also questionable from a theoretical point of view) the existence, possible development, or desirability of a European demos has been discussed contradictorily during the last decade (Cp. Kirchhof 1994, Weiler 1995, Habermas 1995 and 1996) This question, however, is paramount if one aims at introducing representative structures similar to national politics into European policy making. Most prominently, the existence of a European demos has been doubted in the no-demos thesis by the German Supreme Court of Justice (Kirchhof 1994) – “if there is no state, there cannot be a constitution and if there is no demos there can be no state”5. This thesis has been challenged frequently and plausibly (cf. Schneider 1995; Weiler 1995) in its essentialist form. Historical analyses have pointed out that national demoi were not a presupposition of nation states, but that, quite on the contrary, the development of nation states made the “invention” of national roots and visions necessary (Habermas 1995; Anderson 1983; Gellner 1983, Thièsse 1999) If, however, a demos is not naturally given but a construction then it is – at least, theoretically – also possible to construct a European demos. It was first and foremost Juergen Habermas (1996) who emphasized the role of generally accepted rules for society, i.e. of the law, for the development of a “constitutional patriotism”. For this understanding, thus, the European Constitutional Treaty could not only change the institutional framework of the EU but could also be understood as an important step towards a closer political community. However, other theorists of deliberative democracy (e.g. Bohman 1996; Parekh 2000) and, up to some degree, even Habermas himself (1992) have brought forward the argument that commonly accepted legal rules are necessary but not sufficient for the development of a European democracy. The community of citizens needs closer bonds in order to develop solidarity between the citizens and loyalty of the citizens towards the political system that are necessary for a working democracy. Thus, a European demos cannot be constructed by institutional measures only. This consideration was taken up by two strands of literature, one of them arguing for a deliberative model of democracy, the other one for direct democracy.

5

„Wo kein Staat, da keine Verfassung, und wo kein Staatsvolk, da kein Staat.“

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2.2 Deliberative Democratic Theory Deliberative theory of democracy has contributed a variety of – partly overlapping, partly contradictory perspectives on this second point by focussing on the political public sphere as the core of democracy (Habermas 1996; Eriksen/ Fossum 2000; Schmalz-Bruns 1999). Through debates in different public spheres not only rational consensus on concrete political questions shall be reached, but, in a more profound way, participants shall learn from each other thereby changing their perspectives (Nanz 2002). This conception of the public sphere is not based upon the notion of a unified public discourse that, similarly to the Athenian agora, includes all citizens, but on the more realistic concept of different, partly overlapping fora of discourse. Some of these fora are stronger (in terms of decision making power), e. g. parliaments, and some are weaker and refined to opinion shaping (Fraser 1992) – but decisions of the strong publics are informed and influenced by the deliberations of weak publics. In the words of Habermas: “Only the principles of the guaranteed autonomy of public spheres and competition between different political parties, together with the parliamentary principle, exhaust the content of popular sovereignty. (Habermas 1996, 171) Deliberative democracy, thus, offers two solutions for the problematic lack of a European demos: 1. While, according to liberal democracy, some kind of demos is a presupposition for representative democracy, this is not the case for deliberative democratic procedures that are not based upon a pre-existing bondage between participants but aim at a concluding rational consensus on political matters. Not the adequate mirroring of different interests through representation but the dissolution of differences within rational debates stands in the centre of deliberative democracy. One could therefore argue that deliberative democratic structures ease the democratic problem of the EU in the short and middle run 2. In the long run, rational deliberations and the agreement of all participants on certain rules of the game, i.e. on law and, especially, on a constitution should lead to the development of a European demos that is not ethnically defined but based on constitutional patriotism. The manifold discussions and decision making fora of the European institutional framework (such as expert committees, think-tanks etc.) have made the European Union an especially rich field for this understanding of the public sphere. Some scholars (see e.g. Joerges/ Neyer 1997, Joerges 1999) have argued that all these fora can be understood as deliberative democratic institutions. This, however, poses the question, who is allowed by whom to participate in deliberative pro-

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cesses, i.e. the question for the legitimacy of deliberative institutions. If we understand every expert organisation as an example of deliberative democracy the main criterion for participation seems to be effectiveness – those included should contribute to solve the problem at stake (cf. Schmitter 2002). However, democracy is not so much qualified by output (i.e. effectiveness) than by input (i. e. processes) and in this sense, it seems problematic to equalize legitimacy with effectiveness (cp. Heinelt 2002). Some frequently mentioned institutions of European deliberative democracy like above all comitology could, in fact, rather be understood as democratically problematic expertocratic clandestine bodies.

2.3 Direct Democracy Another way of dealing with the democratic deficit of the EU, namely the introduction of mechanisms of direct democracy, has been proposed most prominently by Abromeit (cp. e.g. Abromeit 1997). In Abromeit’s view, every form of centrally organised political decision making by majority voting is problematic in a polity as heterogeneous as the EU. Not only nation states but also regions as well as geographically spread interest groups should be considered in political decision making. Thus, a federal system is called for, where decentral units are formed that are more homogeneous and therefore able to find commonly acceptable majority decisions. Decisions for the whole polity have to be made unanimously by all of its sub-units. In Abromeit’s view, the best way of coming to decisions within the sub-units is by direct democratic mechanisms, i. e. by referenda. Abromeit’s proposal is aimed at re-enforcing the rights of the citizens in EU decision making; at the same time, it is a basically anti-integrationist proposal due to the recognition of veto rights of various sub-units. While Habermas’ concept aims at creating a demos by forms of political participation, Abromeit proposes to adapt the possibilities of political participation to existing cleavages within the European population. Theorists of democracy have frequently uttered reservations against the habitual use of direct democratic tools. Citizens are not able (and cannot be able) to rationally judge the ever more complex political questions that have to be decided. Thus, referenda, are prone to be decisively influenced by propagandistic activities of populists. Besides, the democratic quality warranted by the direct decision of citizens is often flawed by very low voter turnout. This holds even true for Switzerland, the often quoted example for a working direct democracy. On the other hand, the long tradition of direct democracy in Switzerland has created a political culture that cannot easily be duplicated elsewhere. But even so, direct democracy

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makes political decision making a cumbersome and slow process (cp. Sartori 1987, 246 and 280-283).

3. The Constitutionalisation of the EU out of the Perspective of Different Theories of Democracy It could be argued that the Constitutionalisation of the EU would fulfil claims of all three theories of democracy described before. Although the Constitutional Treaty falls short of many expectations set upon it, there is little doubt that it would mean a progress with regard to transparency and democracy in comparison to the Treaty of Nice. The rights of the only directly elected EU-institution have been enhanced once again, the European ombudsman should improve the enforceability of citizen’s rights and the European citizens’ initiative is a possibility for citizens to directly bring their claims into politics. Thus, the liberal democratic claim for democratisation of the institutional set-up of the EU would at least partly be fulfilled. The European Convention as well as the parallel Forum of Civil Society can be understood as a case in point for deliberative democracy in the EU. By including representatives of the European institutions and of governments and parliaments of the Member States as well as the soon-to-be Member States, the Convention considerably broadened participation in EU decision making in comparison to IGCs. Furthermore, public discourses of the citizens of the Member States were encouraged by putting up discussion fora in the real as well as the virtual world. However, the Convention also clearly showed the yet unsolved intrinsic problems of the model of deliberative democracy. While more political positions were heard in the Convention than in an IGC, their scope was still rather limited – e.g., it is difficult to imagine that two representatives of each national parliament can represent the many interests encompassed in a parliament. The composition of the Forum of Civil Society was even more problematic as it is a contradictio in se to find representatives for such a disperse field that is defined precisely by its nonrepresentative character and by the focus of most of its parts on single issues. But, of course, representative quality is rather a concern of liberal democracy than of deliberative democracy focusing on the possibility of consensus building by rational debates. However, the time frame and organisation of the Convention did not provide so much for rational debate than for the exchange of (very short) statements on different topics. And the input of the Forum of Civil Society was limited to the point of ridiculousness; the actual input of these organizations into

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the Convention amounted to eight hours over the whole time of the Convention6. Finally, the participation in public discussion fora on the Constitution remained to a high degree limited to contributions of elite groups; neither citizens nor media showed much interest in this crucial development of European integration. Consequently, one could argue, that the adoption of the Draft Constitution by the Convention was not so much the result of rational deliberations than a success of the rather authoritarian organization of decision-making processes by the presidium. The power of the presidium was frequently criticised by the members of the Convention themselves. And when the Convention moved from mere debates to the actual drafting of the Constitution, the lack of clear rules of decision making enhanced this power. The "Giscard consensus" probably enabled the Convention to adopt a unified draft Constitution but, from a democratic point of view, it was highly problematic. The claim for more direct democratic forms of political decision making, finally, can be understood as realized by the referenda on the Constitution, and, although, they do not take place on the regional but the national level, they have indeed opened up the possibility of stopping the process of Constitutionalisation by the population of one Member State.

3.1 The Referenda on the Constitutional Treaty When it became obvious that there was, indeed, a very high probability that the constitution would not be approved by the population(s) of one or more important Member State(s), the question arose if a referendum was the right way of ratifying the Constitution or if ratification by national parliaments were more appropriate. The answer to this question depends on the political and/or the theoretical point of view of the commentator. ● Critiques of the Constitutional Treaty were in favour of referenda as this form of ratification opened up the possibility for citizens to effectively express their dissatisfaction with the development of the EU (Cp. e.g. ATTAC 2003). ● Supporters of the Constitutional Treaty who were also in favour of a referendum argued that it was necessary for the democratic legitimacy of the EU to involve citizens at this crucial point of European integration (Cf. e.g. Heinrich-Böll Stiftung 2004).

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The representatives of civil society were grouped according to eight sectors. Each of these sectors had 25-30 minutes of speaking time followed by the same amount of time for discussion.

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Other supporters of the Constitution, however, argued that the real impact of the Constitution was not understood by the citizens and the outcome of the referenda therefore contingent. Thus, a well informed discussion by the legitimate representatives of the European peoples, i.e. the parliaments, was to be preferred.7 Out of the perspective of the three concepts of democracy described above a clear votum for or against referenda can only be derived from the theory of direct democracy as understood by Abromeit (1997). Referenda within the EUsub-units with a possible veto-character are to be approved of out of this view. Liberal democracy is generally in favour of representative mechanisms, however, the “constitutional moment” of the EU could be used as an argument for the singular use of a direct democratic instrument. For deliberative democracy, finally, the most important point would be the deliberative process leading to a rational decision. While there is little doubt that, in fact, debates in the forefront of the referenda were only partly related to the matter at hand and frequently dealt with other EU matters than the changes brought about by the Constitution, one could also argue that debates became much more analytical and to the point in the course of the campaigns when supporters of the Constitution were forced to argue their point of view at depth.8 In order to find yet another perspective on this question, a fourth theory of democracy shall be introduced here, namely the theory of radical democracy as developed by Laclau and Mouffe (2000) that, up to now, has not been frequently applied to questions of European integration.

4. The Theory of Radical Democracy The theory of radical democracy conceptualizes democracy neither as an existing political system nor as a kind of polity that can ever be reached but as a horizon of politics. Democracy is, in the words of Ernesto Laclau, an empty signifier (e.g. Laclau 2002) that does not denominate any real phenomenon or any precise conception. The term “empty signifier” does, however, not imply that the notion of

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For an overview of the different positions and arguments on the referenda, see Maurer/Schunz 2003. See the empirical results of the study “The Referenda on the European Constitution. A Crucial Moment for the Development of a European Public Sphere?, carried out at the Institute for European Integration Research of the Austrian Academy of Sciences. The project report will be available from March 2006.

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democracy is useless for politics – quite on the contrary, it is precisely by empty signifiers that every system organizes itself in a fundamental way. Laclau developed his conception of the political in analogy to the system of language thereby using analyses by de Saussure (2001) and Derrida (1998). A system consists of elements different from each other and communicating with each other. The telos of a system, however, cannot be grasped out of its own elements – otherwise, the system would be purely self-referential. Thus, the telos of democratic politics cannot consist of one of its own parts, it is a signifier that has no specific signified – and it is precisely by this quality of non-definition and noncorrelation that it organizes the whole system. The telos of democratic politics cannot be found by consensus of participants, i.e. elements of the system. This fact opens up the realm and the possibilities of political discourse as it transcends the limits of the political system as it exists. The most fundamental differentiation between radical democracy and other theories of democracy is their respective definition of the realm of the political. For most theories of democracy, there are “best political solutions” that can be found by rational debate. Political positions are negotiable and by learning from each other satisfactory political solutions can be found. For radical democracy, there is no possibility to find ultimately right political solutions. The character and aim of a political system is understood in a certain way by different parts of the system. Fundamentally, there is no way to define a right or true link between the empty signifier and a specific signified. The political, in this sense, is understood as the claim for a certain understanding of the empty signifier. Political claims in this sense are always universalistic, they claim their validity for society as a whole. They are not presented as representations of interests but as representations of general values – and as such, they are not negotiable. So, out of this viewpoint, there are no rational solutions for political problems – as their realm lies out of the rationality of the system – neither are there ultimate compromises – as all political positions claim universality. This claim is never absolutely justified as it is always derived from particular political understandings and positions. Thus, political claims are, at the same time, particular and universalistic. These basically incompatible dimensions cannot be dissolved – neither by finding a really universalistic political position (as e.g. both liberal democracy and Marxism have claimed for themselves) nor by the relativist assumption that different political positions can be equally valid (as has been part of some multi-culturalist positions, see e.g. Huntington 1996). Instead, this tension will remain unsolved and make politics an always and necessarily uncompleted process. The assumption that a certain understanding of the empty signifier is the right one, e.g. that the EU has to be democratized in the way the Constitution aims at

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implementing, is a way of establishing hegemony. Hegemony does not mean to assert the superiority of a concept but to present it as the only possible. Alternative solutions are made invisible. The universalistic claim of every political position is the claim for hegemony. Due to specific contexts, it is possible for a certain political position to succeed in establishing hegemony while other political positions struggle for taking over its place. This struggle consists of the deconstruction of hegemonic claims by dismantling the particularity of the political position incorporated in them and the precise interests that stand behind them. A political position that succeeds in deconstructing a hegemonic position and to become hegemonic itself, will be deconstructed, in due course, by other political claims. In this vein, also Habermas’ understanding of law as generally accepted rules of society is a way of establishing hegemony that has to be deconstructed. The theory of radical democracy opens up the political space for a potentially unlimited range of political concepts and asserts, at the same time, the fundamental undecidability of the political. The ultimate goal of the political (as well as of democracy) cannot be defined. Therefore, political decisions cannot ultimately be assessed as right or wrong as this would presuppose an ultimate telos of the political as a yardstick; political decisions are therefore made under the condition of undecidability. As Kierkegaard (quoted in Laclau 1999, 122) put it: “The moment of decision is the moment of delusion.” At the same time, only undecidability makes a decision possible, a decision within a closed system of clearly defined goals would not be a decision at all but the solution of a logical problem. This very fundamental assessment does not mean that all political positions have the same legitimacy or the same possibility of success. It does also not deny the existence of values a society and, thus politics should strive for. But it means, that the precise understanding of these values and, therefore, also the legitimacy and chance of success of a certain political position depend on concrete political and socio-economic situations. For Laclau and Mouffe (2000), the values a democracy should strive for are those represented both by liberal democracy and Marxism – freedom, equality, and solidarity. But, as Laclau (1999a) explains using the example of equality, the exact understanding of these values is the subject of political struggles: “(…) I think the notion of universality is linked, basically, to the expansion of the logic of equality within society, through the logic of equivalence (…) which presupposes the extension of the principle of equality to a larger variety of social relations (…). For instance, the notion of human equality started with Christianity in religious discourses: all men are equal before God. The achievement of the Enlightenment was the extension of this logic of equivalence of equality, to the public sphere. And there is where the public space of citizenship was created. Now, I see, since that point, the art of the democratic revolution as the progressive extension of the principle of equality to a larger area. (…) I think this is not simply the recognition of something which was

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always there, but is a process of actual creation. If we are breaking with the essentialist conception of the subject, we are not saying that the social movements are discovering (…) an inequality - which was always there, they are actually creating the terrain of that equality, and the equality as such (Interview 1999).

Thus, the necessary incompleteness of democracy does not reduce the legitimacy of political claims to improve (or even fundamentally change) existing political structures – although every new political solution has to expect to be challenged by new claims. Radical democracy understands political antagonism as constitutive and therefore unavoidable. This, however, does not imply that it is never possible to abolish a certain antagonism. Quite on the contrary, it is the task of a democratic political system to create conditions for negotiating antagonisms, i.e., in the words of Laclau and Mouffe (2000) to transform antagonisms into agonisms and thereby political enemies into political adversaries. This does not imply the relativization of one’s own universalistic political stance but the acceptance that differing political positions are a legitimate (and necessary) part of politics. While – contrary to the concept of rational solutions as envisaged by deliberative democracy – no end for social antagonisms in general is possible, the negotiation of concrete agonisms is a necessary precondition of social progress, of democratization. Politics is, thus, the conflict of universalistic understandings of society, its tasks and aims, and, ultimately, concepts of a good society. This conflict takes place in the political public sphere.

4.1 The Public Sphere The European public sphere is conceptualised in various ways by different authors. These concepts tackle different dimensions of the public sphere and are coined by differing analytical and political interests. Above all, two fault lines can be observed: 1. Theoretical considerations on the public sphere tend to hold highly normative claims to the discourses a public sphere should consist of while empirical studies mainly focus on media discourses that take place in monopolized or oligopolized structures and mediate selective, popularized and personalized contents9. 9

Nowotny (2003) differentiates between the „ideal history“ of the theoretical concept of the public sphere and the „real history“ of the structures of the public sphere that is characterized by crises, menaces, and abuses.

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2. While EU institutions – above all the European Commission – understand the European Public Sphere as a means to create a positive attitude of European citizens towards the EU, an alternative understanding conceptualizes the public sphere as a sovereign and critical instance (see e.g. Warner 2002). It is little surprising that there are very few attempts to bridge these faultlines as, fundamentally, they cannot be overcome. It does not seem possible to apply a Habermasian understanding of the public sphere to – e.g. – the media imperium cum political power of Silvio Berlusconi. And it seems even more problematic to reconcile a polity-driven understanding of the public sphere with the claim to a sovereign public sphere. This second differentiation leads furthermore to different expectations for the functions of a European public sphere for European democracy: Research focussing on the development of the European polity usually emphasizes the role of the public sphere for a European identity necessary for the loyalty of the citizens to the European institutions and their solidarity with each other (e.g. Gerhards 2000, Risse/ Van de Steeg 2003). For a sovereign and critical European public sphere, on the other hand, the democratic conflict on political goals and instruments of the EU stands at the core of the concept. While there is no common denominator for these different approaches, it seems vital for further considerations on the European public sphere to build bridges between them. The theory of radical democracy can provide for these bridges by its claim for an agonistic discourse on European political matters. This claim is above all the claim for a (re-) politization of politics. The hegemonic neoliberal paradigm presents politics mainly as a management problem for which a best and most efficient solution can be found. However, the political is fundamentally the struggle between different ideological positions, the search for a good society. Political aims like e. g. full employment, social security, a zero-deficit or effective anti-terror measures are in many cases not reconcilable but – at least, in their practical implementation – mutually exclusive and the decision for one of them and against another is not naturally given but driven by political interests. A (re-)politization of European politics and of the discourse on it could help to overcome one of the most striking problems of the European public sphere, namely the disinterest of the citizens. Disenchantment with politics is frequently operationalised as an independent variable of everyday politics that – by its very denotation – is blamed on the lack of common spirit of individuals. However, when politics is mainly defined as a management problem it is only rational for citizens to leave the search for these solutions to experts. An understanding of politics as struggle between ideologies that can and have to be argued but cannot claim their truth and legitimacy a priori opens up the political sphere for a much greater variety of inputs. In short: It is the depolitization of politics that leads to

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the depolitization of the citizens and it is, thus, not implausible to expect that a repolitization of the former will politicize the latter. A second claim of radical democracy is to create fora for agonistic political discourse and to open up those fora for all possible political positions. This means, above all, that the struggle between different worldviews has not to be understood as a fight between morally inferior or superior positions. It is probably one of the most common ways of establishing hegemony in everyday politics to qualify differing political positions as morally wrong. It also implies that (as) equal (as possible) conditions of participation have to be created for all potential participants, irrespectively of their social or economic position, their gender, class or race. For an understanding of the European public space this would, above all, mean to develop a considerably broader perspective on what and who has to be understood as part of the public sphere. A conceptualization of the European Public Sphere as a means to create a more positive attitude of the citizens towards the EU excludes Euro-sceptic positions. Out of the perspective of radical democracy, only by including these positions not only as legitimate but as vital, a European political public sphere can be conceived of that is able to transcend the limits of existing political systems. While agonistic discourse stands at the core of the public sphere according to the theory of radical democracy, the question for a European identity cannot be completely left aside. A democratically organised political community needs per definitionem a demos who is the sovereign. And a precondition for a demos is some form of loyalty with a political entity, i.e. a collective political identity. This is not only a problem of definition but also a practical political one: Only if I understand myself as belonging to a society I will be prepared to get involved and to accept collective decisions that do not correlate with my individual interests. Loyalty with a political entity, however, should not be equated with uncritical acceptance of all political decisions. It is a result of such a shortcut when Euro-sceptic voices are excluded from conceptualisations of the public sphere. In this way, the sovereign character of the public sphere is ignored by functionalising it to warrant the governability of a polity. Radical democracy and deliberative democracy agree in their understanding of collective identities as constructed and in seeing discourse on political matters as a crucial dimension of this construction. For both strands, common rules are necessary to make such a discourse possible. But for radical democracy, these rules are dynamic and can become subject of agonistic discourse themselves. Political identity (as identity in general) is also understood as a constantly changing and precarious quality. In fact, it would be more correct to talk about different

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identifications than to use the notion of identity that suggests a fixed quality. A political identification with the European Union would mean that citizens think it worth their while to formulate political aims for this entity and to enter an agonistic discourse on these aims and on the instruments that should be used to reach them. People identify with different concepts and goals, depending on their gender, race, class, age, political position etc. Thus, they enter the political discourse as representative not of one but of multiple identities – and they change their identifications in the process of arguing on politics. The public sphere is thus more than a place for the articulation of previously developed positions; positions, interests and identities are constructed, changed and developed there. Thus, a political public sphere does not only serve the mediation between the will of the citizens and the political system; it is precisely the place were political wills are developed by way of communication. An identification with the EU – understood as an agonistic interest in its political development – could thus be one – always instable – outcome of an agonistic public sphere.

4.2 The Referenda out of the Perspective of Radical Democracy The fervent debates on the Constitution and the development of the EU in general that took place in some Member States carrying out referenda – above all in France – can be understood as the re-introduction of the political into EU debates. Two hegemonic claims can be identified that have been contested within this process, 1. the unavoidability of certain political and economic developments of the EU, and 2. a certain understanding of what is at stake at the referendum. These two points stand in a difficult and complex relation to each other. EU critique from the left focuses above all on the lack of a European social policy and the neoliberal economic policies of the EU. They are certainly right in maintaining that this orientation is not fundamentally changed by the Constitution. However, the Constitution opens up new legal foundations and new instruments to, above all, make the EU more social and less market-driven. The Charta of Fundamental Rights as well as the new competences in the field of social policy are important preconditions for political changes as envisaged by the left, and the again enhanced power of the European Parliament and the new instrument of the European citizens’ initiative could open up ways of implementing such changes. Thus, in fact, the failure of the Constitution means a regress in European integration that

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is probably not in the interest of the left groups campaigning for a “No”. (The situation is different for the critiques from the right, as, in fact, a re-nationalisation of the EU and a postponement of Turkish accession become more probably by the failure of the Constitution.) However, it has been a long time since the citizens had last the possibility to directly influence the development of European integration. Furthermore, arguments for a broad approval of the Constitution by the citizens (i.e. for broad participation in the referenda and a positive vote) were highly ambiguous maintaining, on the one hand, that citizens should feel their responsibility for the future of the Union at this constitutional moment, while stating, on the other hand, that no fundamental critique of the EU should influence their decision but that they should focus exclusively on the – not easily understood – changes the Constitution brings in comparison to the Treaty of Nice. Thus, fundamentally, the problem of the referenda lies in the attempt to legitimise democratically a hitherto elite project. Both parts of this problem are unavoidable given the historical development of the EU. European integration has started as a – mainly economically defined – elite project and has, with the Treaty of Maastricht at the latest reached a depth that is – for democratic societies – normatively not acceptable without being democratically legitimised. While steps of democratisation have been implemented since the 1980s it is also generally undisputed that these steps were too slow and incremental to be satisfying. The complex multi-level-system of the EU made it possible for national governments to shift blame on the European level while veiling, at the same time, the general loss of national sovereignty and the shift of power from national parliaments to national governments (in their function as members of the Council of the European Union). Crucial decisions on the institutional structure of the EU as well as on concrete policies were made in bargaining processes of national governments that led to results frequently neither adequate to the matters at hand nor understandable for the citizens. Thus, the possibility of citizens’ participation in EU decision making does not come too early but rather too late and the Constitution could become the victim of the hesitant process of EU democratisation. Ironically, what can be seen as a crucial step to democratisation could therefore result in a backlash for the democratisation of EU institutions. Several institutional changes the Constitution provides for would probably be carried out without the Constitution using existing legal provisions of the EU, like the right to self-organisation of the institutions and inter-institutional agreements. This development would, once again, reduce transparency for the citizens. Political developments provided for in the Constitution, like above all the deepening of the Common Foreign and Security Policy and the

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European Security and Defence Policy would probably not become a common EU policy but implemented by flexible integration of some of the Member States. Such a development would mean, among other things, that Member States critical of these policies have no possibility to intervene in these political developments. Out of the broader perspective developed from the theory of radical democracy, however, there is more at stake at this point than questions of concrete politics, namely the political in European integration. The argument that the Constitution – although not really satisfying – is the best possible solution at the moment can be read as part of a more general argument for “real politics” and the impossibility of utopias. According to this understanding, the best of all worst solutions is most of the time all that can be politically aimed at. Critical movements from the left have contested this assumption for some time now by attacking European integration as well as globalisation for moving in a wrong direction. While their voice has gained slowly but continually influence during the last years, up to now, they had no possibility to also get in their vote. This possibility has been opened up by the referenda and has been effectively used to develop an agonistic European public sphere. The empty signifier “European integration” has been successfully translated for decades by political elites as the actual process of European integration mainly driven by economic interests and common denominators of national claims. Within the debates on the European Constitution this translation has been contested from different groups that feel – out of differentreasons – deprived by, or, at least, dissatisfied with this understanding of European integration. Chains of equivalence between these political claims could be built up by their common rejection of the Constitution. Their protest made it necessary for the supporters of the Constitution to find political arguments (in the sense of Laclau/Mouffe), too. A Europe-wide referendum would have served this aim better than national referenda that, to a high degree, are influenced by internal political conflicts. Transeuropean discourses on the development of the EU would have been furthered by a referendum of the European citizens – and not the citizens of a nation state on a European question, and these transnational discourses could also have helped to develop a European political identity. Besides,the probability of success of the Constitution would have be higher as internal political questions of the Member States would have played a less significant role. But, still, debates around the Constitution and European integration in general can be understood as a contribution to the development of a European democracy not reduced to improved institutional mechanisms but based on political discourses within the European public sphere.

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