The new revision of the old constitution
Otto Pfersmann*
On June 25, 2004, the conference of government representatives in Brussels
adopted the text of a “final draft of the Treaty establishing a Constitution for
Europe”1 (CIG 86/04 323), which now awaits ratification by the member
states of the European Union (EU).
The legal nature of this document is as disputed among scholars, politicians,
and citizens as the nature of the Union itself; the main question is, of course,
whether and to what extent the European Union, with its three pillars, will be
substantially modified if the new document becomes its normative basis. This
essay claims that however important the changes in the legal setting may be in
other respects, the Union has not been converted into something different.2
The reason—as is so often the case when problems of a legal nature are at
stake—is structural. Ultimately, the Union will simply be unable to change its
own competences and to distribute competences among itself and its component entities, the member states. And just as the significance of the transition
to the new treaty is exaggerated in doctrinal and political discourse, so its deep
origins in the old system are underemphasized and for an equally structural
reason: Europe as the Community has always had a constitution. This makes
the new document appear much less ambitious than its proud wording would
have it. The new treaty is a revision of an old constitution—Nice II, if one likes
* Professor of public law and legal theory, director of the Institute of Public Comparative Law, University
Paris I Panthéon-Sorbonne; email: [email protected] doi:10.1093/icon/moi025
1
For editorial reasons, footnotes refer only to relevant legal material, not to doctrinal writing (with
the exception of footnote four). Conference of the Representatives of the Governments of the
Member States, Provisional consolidated version of the draft Treaty establishing a Constitution
for Europe, CIG 86/04 (June 25, 2004), available at http://ue.eu.int/igcpdf/en/04/cg00/
cg00086.en04.pdf; I shall use “DT” for Draft Treaty Establishing a Constitution for Europe, 2003
O.J. (C 169) 1 (the document given by the Convention to the European Council); “CT”
(“Constitutional Treaty”) for Treaty establishing a Constitution for Europe, 2004 O.J. (C 310) 1
(the document adopted by the intergovernmental conference (IGC) and now open for international
ratification); and “TECE” for the future Treaty establishing a Constitution for Europe, considered
not as a text but, rather, as a set of norms.
2
Of course, the new Union will be something different in the sense that it will legally absorb
the former Union and the former European Community (CT art. IV-438), though not Euratom,
and it will be endowed with legal personality, whereas formerly it only embraced the “pillars.”
Nonetheless the new Union is mainly a different verbal construction of an entity that will not
otherwise change, as the new treaty so provides.
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A constitutional identity for Europe?
to start with the last step, or Maastricht IV, if one prefers to start with the
advent of the European Union per se. Still more accurate, if complicated,
sequences would factor in the various combinations of treaty revisions. Thus,
whatever one applauds in the new document has less to do with its legal
nature or substance than with wishful or fearful ideology.
To sustain this claim, one must show: (a) that a legal system is structurally
defined by the way in which it distributes competences at the highest level;
(b) that the draft treaty introduces no relevant structural change; and (c) that
nothing outside the treaty would suggest a different outcome.
1. The constitution in the treaties
The use of the term constitution in doctrinal writing before, during, and after
the Convention for the Future of Europe, and especially in and around the
convention, has caused a great deal of confusion. A constitutional treaty, so
called, may be considered either as a contradiction in itself or as a completely
new legal category. In order to show that it is an interesting but old phenomenon, one must distinguish among the different meanings of constitution
(A), before considering the particular case of the EU as a system of external
constitutional competence (B), until the stage where the new treaty is intended
to apply (C).
1.1. Dynamic structure
The term “constitution” appears in many different contexts, allowing for different if not contradictory meanings which serve to propagate diverse conceptions concerning the present and future nature of the Union. It could be
argued that, before the convention, neither the Union nor the Communities
had a constitution proper and that, however much they might claim to be entities sui generis, they owed their legal existence to international treaties,
whereas only “states” have constitutions. In this context, several authors and
the European Court of Justice (ECJ) itself have taken the position that the set of
institutive treaties and the principled decisions of that court already amounted
to a “Constitution of Europe,”3 even though this was not explicitly expressed
in a traditional constitutional vocabulary.
Given that “constitution” can have different meanings, being a European
constitutionalist or a European anticonstitutionalist did not necessarily entail
being more or less in favor of a legally rather than politically defined Europe.
Thus, instead of clarifying matters, the debate around the convention paradoxically increased the confusion. By drawing on constitutional terminology,
3
Case 294/83, Parti Ecologiste ‘Les Verts’ v. Parliament, [1986] ECR 1339; see also Opinion 1/91,
[1991] ECR I-6079 (on the European Economic Area); Opinion 2/94, [1996] ECR I-1759 (on the
European Court of Human Rights (ECHR)).
O. Pfersmann
385
these efforts seem—at least verbally—to introduce a new dimension, but this
resulted either in weakening the claim of the European constitutionalists that
Europe already has a constitution, or belied the asserted achievement of the
architects of the convention, reducing it to a mere rewording of an old legal
instrument. European anticonstitutionalists are angry because they fear that
“constitution” implies too much, whereas European constitutionalists may be
afraid that a “treaty” establishing a constitution for Europe implies remaining
stuck in a previous stage of development.
This gives rise to an important problem that has not been clearly articulated. To unravel the relevant issues, it is necessary to distinguish among the
political, theoretical, and doctrinal meanings of the notion of a constitution.
As a political concept, “constitution” means a set of norms and values a
community considers foundational, regardless of their legal or nonlegal character. It can refer to certain conceptions of justice or common history, or to
a sense of societal solidarity, or to a common collective project. Strong as the
impact of such conceptions may be, they do not, as such, have any legal
normativity and will not be taken into account here. The doctrinal meaning
of constitution tells us precisely what the term means in the particular text
in which it appears. This may include a lot of different matters having
ultimately nothing to do with even the most commonly shared beliefs about
the most ordinary legal meaning of the word in a different context. The
doctrinal meaning provides an account of constitution as a proper name given
to a certain set of norms, quite apart from what the same expression might
signify elsewhere.
As with other legal terms, the theoretical definition of constitution introduces a concept and may be constructed arbitrarily for the sake of argument,
as long as it is not self-contradictory or void by definition or otherwise meaningless. And one can, of course, always argue that “constitution,” as it
will be used here, does not fit this or that usage favored by other authors. The
definition advanced here, therefore, must meet two additional requirements.
First, it must not depart too much from the intuitive idea shared by otherwise
opposed conceptions, according to which a constitution is the most fundamental layer, and the highest level, of a legal system’s normative standards.
But, second, it must give this idea a more precise and objective shape, allowing
for the critical discussion of an identifiable object. It may be, then, that this
meaning does not coincide with the meaning of constitution as set forth in the
document that styles itself a future “Constitution for Europe” (that is to say,
the word’s doctrinal meaning). But this is precisely the point. The doctrinal
meaning of constitution in the treaty may be empty, whereas, according to the
theoretical meaning, there may be a constitution even without any such
explicit designation.
In its theoretical legal sense, a constitution will be considered, for any given
legal system, the set of norms that determines the legal normativity of other
norms, without members of that set being themselves subject to other norms
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in the system.4 We may leave aside the question as to how these norms may
themselves be considered valid; suffice it to say that we may have reasons to
suppose them legally valid and that, by definition, they do not depend themselves on the other norms of the system (because, in that case, those other
norms would be the constitution). Such a class of norms exists necessarily for
any dynamic system—that is, for any system that is not enacted once and for
all but allows for modification and concretization, in this case, by means of
legally framed applications resulting in norms of a lower-level and abstract or
general nature. In some legal orders, however, constitutional norms can only
be identified by their content, as the method of producing them is not distinguishable from the method used in producing other norms, as in the case of
“primary legislation.” In most contemporary systems the constitution is, at
least to a certain and variable extent, formalized in the sense that the production of norms relating to the material constitution are framed in a specific way
that is different, explicitly characterized, and more exacting than procedures
for producing other norms.
This definition requires some precision and calls for some explanation.
(a) The determining element of the formal constitution will be the organ
entitled to modify it; what matters, here, is who has constitutional competence. The types of organ empowered to change the constitution—and change
may be arranged for in terms of many different parameters, such as partial or
complete revision, revision concerning the territorial structure, and so forth—
thus may be considered as suitable criteria for the classification of constitutional systems.
(b) One distinction relevant to our present purpose is that of internal versus
external constitutional competence; in the first instance, the organs with constitutional competence belong exclusively to the same legal system, whereas in the
second there are some aspects, at least, that derive from another legal system.
We may call this “constitutional heteronomy” versus “constitutional autonomy.”
Usually, this distinction is not reflected in traditional constitutional doctrine,
which unduly identifies the constitution with constitutional autonomy.
(c) Norms concerning constitutional competence are necessarily the primary norms of that system, meaning that other norms must conform to them
in order to qualify as norms of the system.
(d) Constitutional competence is the competence of distributing
competences—Kompetenz-Kompetenz is the German concept. The problem we
4
This position may be characterized, schematically, as exclusive analytic positivism. However
debatable this conception may appear, the point that is developed here can be discussed in its own
right and need not be lost in foundational quarrels, however fascinating these may be. Elements of
my own constitutional theory are more fully outlined in Otto Pfersmann, La révision constitutionnelle en Autriche et en Allemagne: théorie, pratique et limites [Constitutional revision in Austria and
Germany: theory, practice, and limitations], in Association Française des Constitutionnalistes, LA
REVISION DE LA CONSTITUTION 7 (Economica 1993); DROIT CONSTITUTIONNEL (7th ed., Louis Favoreu
et al. eds., Dalloz, Paris 2004).
O. Pfersmann
387
are concerned with here is not so much the general question of who, according to the present or future constitution, has the competence to act in a certain
domain as it is the issue of the constitutional law of constitutional competence—as
“competence-competence.”
(e) Revising a constitution is a modification of its normative content, that is
to say, a formalized procedure by which one set of constitutional provisions is
substituted for another. This excludes changes that are merely implicit, as well
as those that could occur without an identifiable alteration of the text (assuming that formalization implies a written expression of the relevant provisions).
Revisions necessarily modify the form of the constitution.
However, certain provisions seem to allow for the constitution to be modified
without the text appearing to change. This seems, at first glance, to happen
when the constitution allows for a change to its own provisions by acts that do
not belong to formal constitutional law.5 What occurs, in fact, is that a certain
legal domain is placed outside the purview of the formal constitution by a constitutional provision. It follows that the acts by which the relevant provisions
are subsequently changed do not change the formal constitution, even though
certain of its elements seem to be affected. This appears paradoxical as the text
remains the same yet it lacks constitutional value, whereas a revision requires
the wording to be modified. The solution to this puzzle lies in the fact that the
relevant provisions henceforth do not pertain to the formal constitution,
which simply states that certain procedures are not formally constitutional.
I shall refer to such cases as “formal declassification” or “deconstitutionalization.”
( f ) Declassification must be distinguished from procedures for revising the
constitution, which can be found, for example, in Austria, Spain, and
Switzerland, or from the definition of different layers of constitutional law
whereby some provisions are excluded from any form of amendment, as seen
in France, Germany, and Italy.6 In all these cases, a revision, whether partial
or total, results in a modification of the wording of the formal constitution.
Declassification must be further distinguished from formal concretizations
of constitutional provisions, such as organic laws or internal regulations of
parliamentary assemblies. In all these cases, the formal constitution states
which matters are subject to a specified extraconstitutional procedure.
5
A classical example was article 24 of the German Basic Law, according to which, “The Federation
can transfer by legislation rights of sovereignty to international institutions,” art. 24 para. 1 GG.
Before the introduction of the new article 23, concerning the relations of Germany to the EU, this
allowed for the attribution of competences to the EC by ordinary procedures, which explains the
relatively easy path of European integration of Germany before Maastricht. I exclude the hypothesis in which a normative frame is replaced by another outside the rules of revision, i.e., a coup
d’état.
6
In France, the constitutional modification of the “republican form of government,” art. 89
para. 5 CONST., is forbidden, as is that of the “State” in Italy, art. 138 COST.; in Germany, specific
provisions are excluded from revision, art. 79 para. 3 GG.
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A constitutional identity for Europe?
Confusion may occur when the constitution uses the term “constitutional
revision” to describe instances that do not result in the modification of the
normative content of the formal constitution. The doctrinal meaning of
“revision” must be distinguished from the theoretical meaning.
One test for a declassification situation is that such provisions are henceforth subject to review by courts entitled to control the conformity of legal acts
to the formal constitution. One can, of course, set up a system in which even
constitutional norms are subject to such a review, but only with reference to
higher constitutional principles or provisions that are not themselves subject
to judicial review.
1.2. International constitutional competence
Traditional constitutional theory has evolved, chiefly, with the concomitant
emergence of the democratic nation-states by the end of the eighteenth
century. Legally speaking, this is, of course, a contingent limitation.
(a) Material constitutional law is a necessary element of any legal system. It
follows that if the European Coal and Steel Community (ECSC), the European
Economic Community (EEC), the European Community (EC), or the European
Union can be considered as legal systems, as we shall grant without further
discussion, then Europe necessarily had, and still has, a constitution, whatever
name is given to this class of norms. In other words, such a constitution has
existed since 1951. And the various modifications of the treaties that have
given the law of the EU its present shape do indeed result from revisions of these
original constitutional norms. This implies that if the adoption of the new document, as the legal basis of the Union, is continuous with the previous developments of law, then the entry into force of the Treaty establishing a Constitution
for Europe will be nothing but a new revision of an old constitution.
(b) The process by which European constitutional law is revised belongs to
the international law of treaties. A problem seems, then, to arise from the fact
that the document purporting to institute a “constitution” is itself a treaty.
Many consider this to be an impossibility or, at least, a conceptual contradiction. This point is, indeed, interesting but does not present any real difficulty.
(c) International public law is the set of norms that is produced by and
applies primarily to states—that is, legal entities endowed with certain constitutive properties, such as territory, population, and government, as these
concepts are understood within international law. In the further development
of this class of legal norms, we come to what has been produced legally by
states, as well as by those entities that result, in turn, from such legal acts.
Nothing prevents states or their derived entities from producing legal systems
that possess a certain degree of autonomy. If a new kind of legal system is so
established, and established as a dynamic system, then this new system necessarily has a constitution, one that is established by the class of norms resulting
from the explicit accord of all parties—or addressees—in a treaty conceived
under public international law. For a treaty to establish a constitution is thus
O. Pfersmann
389
neither extraordinary nor problematic but actually very common. It may be
less common for a treaty to establish the constitution of a new state, but there
is no reason why this should be legally, let alone conceptually, impossible.
Indeed, one can easily adduce many empirical examples. And just as there
is no legal impediment to creating the constitution of a state by treaty, there is
similarly no legal—much less conceptual—obstacle to creating a legal entity
with a lesser degree of centralization than that of a state.
(d) This argument hinges on the question of what can be envisaged conceptually as a legal system. Evidently, if only states per se could be conceived
of in such normative terms, then only states could have constitutions. Such a
claim, however, begs the question and seems difficult to sustain, since it renders international law, and especially international organizations, entirely
unintelligible. Once one recognizes that states are subject to legal norms and
that these norms encompass not only permissions and obligations to act in a
certain way but also the authorization to create norms and to empower new
organs to create other norms, one cannot then negate the legal existence of
international organizations. Furthermore, one cannot deny the legal possibility of international organizations displaying a high degree of centralization,
that is to say, a degree of centralization approaching though not yet equal to
that associated with a state. Thus, if legal systems qualifying as international
organizations and legal systems qualifying as states can both be established by
international agreements, then these international agreements will hypothetically contain the constitutions of such systems, that is, the sets of norms that
organize their future dynamics.
The critical question for both European and national constitutional
lawyers, therefore, is where exactly to draw the boundaries between what
pertains to international law and what belongs instead to the internal law of
a state. It is not a matter of whether a nonstate legal order can have a
constitution—without a constitution it would not be a legal order—but at
what point having a constitution makes a legal system a state. Legally speaking,
the line may be drawn exactly at the point where a state becomes the direct
addressee and organ of public international law. In the context of the
European Union, it is the point at which the member states are deprived of
their power to decide on the distribution of competences.
It is important to see that this is a structural, not a material, issue. Materially
speaking, one can observe a continual shift of competences from the member
states to the EC. Thus, it is possible to imagine a point at which the states might
have lost exclusive competence for any significant domain while still retaining
their constitutional competence, namely, their capacity to modify the fundamental dynamics of European law. And one can envisage equally the opposite
situation, where the member states might have been allocated a materially
important sphere of competences but would have given up their constitutional
competence. Whereas federal states often conform to the latter model, the
European Union, much to the perplexity of many observers, seems to be moving
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toward the first and certainly stranger scenario, where the parts become generally weaker while remaining structurally strong at the constitutional level.
It is, indeed, undeniable that the European Community is empowered
already with important competences. What counts, however, in our present
discussion is not which concrete competences are or will be allocated to whom,
but who is legally entitled to establish and modify that allocation. Formally
considered, the norms that set this dynamic frame are stated in the provisions
of the founding treaties (for example, article 48 TEU);7 they may be modified
only through a revision of those treaties according to the rules of public international law governing the law of treaties; and the competence to enact such
changes belongs exclusively to the various member states. Furthermore, there
are no paradoxical circularities in the constitutional domain, because it states
the exclusive supremacy of the competence of the member states.8
Constitutional norms are often characterized by a high degree of rigidity
when it comes to amendment. The present rules concerning competence not
only require the highest level of rigidity, namely, unanimity; they also impose
procedures belonging to international public law. It is this double exigency
that characterizes the specificity of constitutional heteronomy in the
European system. Unanimity is required in many circumstances, according
to the treaty; international ratification is required for a modification of the
treaties; and ratification by the member states is, by definition, the internationally
valid acceptance of the new norms by all states. And it is significant that all
treaty revisions throughout the history of European integration have maintained this same dual requirement. The competence of distributing
competences is a state competence and remains so for as long as it is not unanimously transferred to the Union.
One can certainly argue that the European Union has not yet reached the
stage of a federal state. But we have just conceded that “state” is just one type
of legal system in a spectrum involving degrees of centralization. Accordingly,
nothing prevents intermediate degrees of constitutional competence, embracing
those orders that are not yet strictly autonomous but are no longer strictly
heteronomous. The point is that centralization need not be homogenous, and,
in the case of Europe, constitutional competence is not yet centralized, even
though several other competences are already attributed to the EC. A second
point is that, however a system is centralized, constitutional competence is
either internal or external, and states are precisely the type of systems that
7
TREATY ON EUROPEAN UNION (consolidated), 2002 O.J. (C 325) 5, 31 [hereinafter TEU]; for previous
examples, see art. 48 TREATY OF AMSTERDAM AMENDING THE TREATY ON EUROPEAN UNION, THE TREATIES
ESTABLISHING THE EUROPEAN COMMUNITIES AND CERTAIN RELATED ACTS, 1997 O.J. (C 340) 1, 10; art.
N TREATY ON EUROPEAN UNION, 1992 O.J. (191); art. 236 TREATY ESTABLISHING THE EUROPEAN COMMUNITY
(1957), available at http://www.europa.eu.int/eur-lex/lex/en/treaties/treaties_founding.htm.
8
This applies even in the hypothesis of measures pursuant to article 7, paragraph 3 TEU, as the
decision “to suspend certain of the rights deriving from the application of this Treaty” does not
concern the modification of the treaty itself.
O. Pfersmann
391
possess internal constitutional competence. Finally, constitutional competence
can be differentiated but not divided; if the power to amend the constitution
were allocated among two sets of organs related to entirely distinct systems,
there would be two different constitutions and two different legal orders.
1.3. European constitutional continuity
With respect to the division between national and international constitutional
competences in Europe, nothing has changed since 1951. The general rule is
established by article 96 ECSC.9 The procedures therein distinguish the power
of initiative (the government of a member state, and the High Authority—
later, the Commission); the power to call an intergovernmental conference
(the Council by two-thirds majority); the power to draft amendments (the
intergovernmental conference by common accord); and the power to accept
(the states by ratification according to their respective constitutional requirements). It may be noted that the power of the Council is not, in this respect, a
power to approve but, rather, a power eventually to stop the process. Majority
voting may block the revision; it cannot accelerate the process or restrict the
international competence of the member states.
It has been frequently mentioned in the debate that, aside from this general
rule, described above, article 95 ECSC provided for a more flexible procedure.
This was indeed the case, but it concerned exclusively “the rules for the High
Authority’s exercise of power,” and it was triggered by unforeseen difficulties
in the application of the treaty or “fundamental economic or technical
changes directly affecting the common market in coal and steel.”10 Any
proposal had to be made jointly by the High Authority and the Council acting
with a five-sixths majority of its members. After scrutiny by the Court, the
Assembly could approve the amendments by a majority amounting to threequarters of the votes cast and two-thirds of the members of the Assembly.
The EC treaty still includes some rules allowing for elements of the treaty
itself to be modified without resorting to the general procedure of treaty revision.
Such rules concern the number of Commission members (ex art. 157(2),
then 213(2)); the number of judges at the ECJ (ex art. 165(4), then former art.
221(4)); the number of advocates general (ex art. 166(3), then 222(3), now
222(1)); and the statute of the Court (ex art. 188(2), now 245(2)). This possibility has been integrated into the DT (III-289(2)), which admits of other
possibilities for changing the norms of the DT or its annexed protocols without
requiring member state ratification subsequent to an intergovernmental
conference (III-76(13)). Another example involves modification by a European
law of the protocol spelling out complementary measures in order to avoid public deficits (III-299(2), concerning the Statute of the European Investment Bank).
9
TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY (1951), available at http://www.
europa.eu.int/eur-lex/lex/en/treaties/treaties_founding.htm.
10
Id., art. 95.
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In terms of procedure, the rule of article 95 of the ECSC treaty was subject
to firm conditions, and any proposal for modification was subject to preliminary
review by the Court; the final decision was left to a qualified majority. The other
past or present exceptions to the strict revision procedure are not subject to factual conditions, although their domain has no direct structural implications—
they do not concern the modification and possible extension of competences of
an organ—and there is no preliminary review. Unanimity is required.
In the present and (at least on the basis of the DT text) future treaty, Union
competence does not apply to the distribution of competences, which, where it
exists, is a strictly determined competence.
1.4. Constitutional heteronomy
To sum up: first, constitutional law and international law do not per se
exclude each other. Rather, there is a question as to the extent to which constitutional competence is internal or external, autonomous or heteronomous.
Second, there has always been a constitution informing the European legal
system, and this constitution has always consisted of a set of international
treaties. According to the actual state of the existing law, the constitution of
the EU is still to be found in the international instrument called the Treaty on
the European Union, and it still prescribes that revisions of that treaty
must comply with the procedures of international treaty ratification. It follows
that, according to the formal constitution of the EU, constitutional
competence is not vested in the Union itself (or the Communities) but in the
member states. The present system of the EU/EC is a system of constitutional
heteronomy.
2. The revision of the revision
The agreed-upon draft of the TECE presents important and interesting modifications to the DT. Some of the provisions were suggested in the convention but
were not included in the draft handed over by its praesidium to the European
Council in Thessalonika on June 20, 2003. In this supposedly final stage of
the future legal framework of the EU, the “Constitution for Europe” is indeed
revised, and the revision extends even to the rules of revision themselves. On
the essential point, the new document presents no significant modifications;
the constitution of the EU still excludes the EU from constitutional competence. But whereas the previous treaties—with the notable exception of article
95 ECSC—maintained a simple and homogenous system of treaty revision, the
new treaty differentiates the steps of the procedure and the organs empowered
to intervene in “ordinary” revision, and it distinguishes it from a new, “simplified” procedure, which allows for internal operations concerning certain
provisions under certain conditions. But even though this establishes a competence of the Union, the text does not give it constitutional competence but,
rather, declassifies elements of the treaty.
O. Pfersmann
393
2.1. Conditioned entitlement to regular revision
It was evident, assuming there was no revolutionary process involved, that the
TECE would have to be enacted and ratified according to article 48 TEU, meaning that entry into force would require ratification by all the member states in
accordance with their respective constitutional requirements. In the end, special
provisions concerning states that would have difficulties in ratifying the
new covenant were not included in the provisions concerning the ratification
of this treaty; such provisions would apply to future amendments and were
finally set forth in a declaration.11
Both the convention’s version and the final draft contain rules concerning the “procedure for revising the Treaty establishing the Constitution” or
“revision procedure” (CT).12 The relevant article of the DT, IV-7, mentions
“the amendment of the Treaty establishing the Constitution,” or the “amendment of this Treaty,” as it is more soberly—and even with a more international
bias—said in the final draft (CT art. IV-443). Article IV-443(3) still requires
ratification (as does the present article 48 TEU) “by all Member states in accordance with their respective constitutional requirements.”
In other words, where constitutional competence is at stake, the constitutional
form remains that of the treaty, and the procedures required for its production,
modification, and destruction are those of public international law. And as long
as there is no modification of article IV-443(3) concerning this element, all
further developments of primary EU law will remain organized by a treaty.
This has three implications: (a) the competence to enact primary EU law
(constitutional competence) is vested in the member states; (b) it is an international competence that can only be exercised by unanimous accord; and (c) it
is not, therefore, a competence of the Union itself. In other words, the Union
will still have no constitutional competence under its own constitution.
The ordinary revision procedure is the general one in terms of constitutional competence. Everything in the treaty, including the procedures of revision,
falls within its domain. It is a system of conditioned entitlements. The interesting aspect is that it differentiates between initiative, elaboration, and acceptance of revisions and creates a real redistribution of powers at the various
stages preceding adoption and ratification. And whereas the procedures for
adoption of the text (the determination of amendments) and acceptance
remain unchanged, the proposing and drafting of the text is accorded more
11
See Declaration on the ratification of the Treaty establishing a Constitution for Europe,
Conference of the Representatives of the Governments of the Member States, Provisional consolidated version of the Declarations to be annexed to the Final Act of the Intergovernmental
Conference, CIG 86/04 ADD 2 (June 25, 2004), at 72, available at http://ue.eu.int/igcpdf/en/04/
cg00/cg00086-ad02.en04.pdf; in previous versions this was intended to be included in the treaty
itself, see Secretariat of the European Convention, Part Three: General and final provisions, CONV
647/03 rty/AM/sjs (April 2, 2003), at 14, available at http://european-convention.eu.int/docs/
Treaty/CV00647.EN03.pdf.
12
Emphasis added.
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A constitutional identity for Europe?
flexibility and does not require unanimity. This is an important shift indeed,
reflecting the experience of the first and the second conventions, which had
already taken the right to present a preliminary text away from the organ that
had previously been solely entrusted with the formulation of new provisions,
namely, the intergovernmental conference. The latter, however, still retains the
exclusive right to determine amendments by common accord.
The prerogative of initiating legislation still belongs equally to the member
states and to the Commission, but, in contrast to the present TEU, the
European Parliament is now or will be equally empowered to submit to
the Council proposals for the amendment of the treaty. That means that those
who represent the Union’s citizens, although still not in a position to initiate
European legislation, may set in motion the process of constitutional revision,
putting them on a par with the states and the organ that represents
the common interest of the Union.
The procedure for initiating an amendment, however, is not binding on
those organs that are authorized to take the next steps. Whereas in the present
system, the Council has vested in its president the power to call an intergovernmental conference (art. 48, para. 1, second sentence TEU), the new
treaty obligates the Council of Ministers to transmit such proposals to the
European Council, which, as a constitutional organ, plays a decisive role. It
decides by simple majority whether to convene a convention or to proceed
directly to holding an intergovernmental conference; alternatively, it may
decide not to proceed any further. The capacity to decide whether to pursue the
proposals, and, if so, to attribute drafting competence to a specific organ or to
the member states (that is, the intergovernmental conference) distinguishes the
new European Council as a truly constitutional organ, which acts in this area
with the highest degree of flexibility, that is, by simple majority. By contrast,
qualified majorities or unanimity are required in many subconstitutional
domains. This increased flexibility is nonetheless a limited entitlement, as the
Council cannot itself determine a particular text, even if it “defines the terms of
reference” or calls for a convention in order to “examine the proposed amendments.” A future convention will act by consensus, recalling the method of
decision of the first and the second colloquium of this type. It is clear, however,
that it has only a power of recommendation that is not binding on the intergovernmental conference, which, in any case, decides by common accord.
This new situation means that the member states are weaker in the intermediate stage, where they have much less power to determine the course or
outcome of an eventual revision, since the European Council, acting as a
constitutional organ of the Union, may terminate or modify the proceeding
by simple majority. Whereas the Council, and eventually the convention, can
veto the initiative, the member states—as intergovernmental conference—are
again empowered, and exclusively so, once the preparatory stages are
completed. It is still the conference that decides the final text, and it is still the
member states that accept or reject that agreed-upon draft.
O. Pfersmann
395
It follows that the apparent dissociation of drafting power and endorsing
power has more to do with functional considerations than with the question of
competence; whereas the convention alone may be authorized to elaborate a
first text, the intergovernmental conference is by no means bound to take it
or leave the text. Its competence is conditioned by decisions taken by those
responsible for the previous stages, but remains unrestrained as to the content
of the amendment.
Nothing changes once the conference has adopted the final draft of the
revision; the member states alone are competent to ratify. It is, once more, a procedure belonging to public international law; ultimately, it is a case of constitutional heteronomy. It remains to be seen whether future conventions gain a
decisive weight in the political process. This is a political, not a legal, question.
2.2. “Simplified revision” as formal declassification
Whereas in the CT the ordinary revision procedure largely reflects the proposal
of the convention, the simplified procedures were explicitly rejected by the
convention, introduced by the Italian presidency, and retained by the final conference. These methods have a limited applicability and cannot be considered
as revisions in a proper sense. What does, indeed, belong to the formal constitution are the provisions themselves, that is, articles IV-443 and IV-444;
they can only be modified through the ordinary revision procedure, while the
norms to which they refer and that are stipulated as amenable to revision by
European decisions are, in fact, formally declassified.
Commenting on its choice to retain, exclusively, the so-called ordinary procedure, the praesidium of the convention presents two arguments.13 First, the
introduction of different methods of revision would split up elements of the
constitution that are otherwise too closely linked to be separated. Second,
the differentiation of procedures would reopen a discussion that needs to be
closed. Strangely enough, the praesidium, in the sentences immediately following, makes a suggestion exactly to the contrary, stating: “. . . however, in
order to accommodate requests for more flexible amendment procedures in
some cases, the Presidium considers it preferable to provide for a streamlined
amendment option (Council acting unanimously, after consultation of the
European Parliament, without ratification by national Parliaments) for certain
provisions of Part Three which do not affect the objectives, values or competences of the Union.”14 What this option could entail, exactly, is not explained
but seems to prefigure the solution proposed by the Italian presidency. Both
the convention and the presidency insist that this procedure cannot be used
to extend or modify the competences of the Union. This clearly excludes the
constitutional domain.
13
Praesidium, Draft text of Part IV, with comments, CONV 728/03 (May 26, 2003), at 10,
available at http://register.consilium.eu.int/pdf/en/03/cv00/cv00728en03.pdf.
14
Id.
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A constitutional identity for Europe?
But what happens if it is used, against the limits set by article IV-445, precisely in order to increase the competences of the Union? If such acts were
considered revisions of the treaty, the ECJ could not review these decisions
under article III-270 DT. But such a view is at odds with the fact that the member states can act only if a European decision has been adopted in accordance
with the requirements of article IV-444, paras. 2 and 3, which appear to be
necessary conditions for valid international approval. If so, the European decision can be reviewed in its own right and quashed if found to infringe on the
constitution, which implies that the international approval would disappear in
a case such as we have been describing, and the act would be viewed as without legal basis. It is, thus, a matter of formal declassification and not a revision
of the treaty. Certainly, the text of the set qualified as “treaty” is modified and
delimited in certain of its parts. However, what will happen with the new
treaty is that these provisions will be relegated to secondary norm making.
Of course, this is a simplified procedure to be used to modify provisions
contained in the text TECE without adoption and ratification by the various
member states. Could one not consider, then, that it affords the Union a
constitutional competence, and that the Union is thus entitled to its own
autonomous formal constitutional law? It seems not. First, procedures for
which the Union possesses an internal competence are not per se constitutional. They would be so only if the norms that could be modified pursuant to
those procedures could themselves modify constitutional competence, and if
the procedures so established were either set outside any possibility of review
(as belonging to the highest level of law) or were made reviewable only with
reference to the very highest principles of the constitution. Neither of these
conditions applies. Second, it is true that there is a formal procedure that is different from ordinary lawmaking, and it is true that it concerns the Union’s
methods of lawmaking. But once again, it does not concern the distribution of
competences; it does not concern the highest levels of norms concerning the
production of norms; and it is reviewable. This is the essential point. Instead
of establishing a certain domain of constitutional autonomy, the simplified
revision process introduces a procedure for acts that are set below the constitutional domain, as it is understood here. Instead of including a set of provisions embedded in a higher law, it excludes a specific set of provisions from the
highest levels of the law of the Union. Undoubtedly, it is extremely important
that this domain shifts from international revision by which it was formally
rendered constitutional, strictly speaking, to a special derived procedure; but
it is equally important that it is, in this respect, henceforth outside the strict
constitutional domain, that is, that it is formally declassified.
The “bridging clause” of article IV-444 allows for a modification of procedural requirements concerning legal acts pertaining to the competences of the
Union. In order to limit such demands, the European Council must adopt
a European decision by unanimity. This decision is conditional on the absence
of a veto from a national parliament and on the positive consent of the
O. Pfersmann
397
European Parliament, which must be given with a special majority. The bridging competence is limited to part III and excludes acts “with military implications or those in the area of defense.” This is, no doubt, a case where the Union
itself is competent via one of its organs, the European Council. The decision
will enter into force and will affect the content of the treaty, but not its constitutional part, as the decision is subject to various conditions and thus open to
judicial review by the ECJ. An act that can be voided as infringing the constitution cannot be considered as setting forth the content of the constitution.
Constitutional competence in the strict sense remains within the ambit of
public international law—that is, of constitutional heteronomy. It seems clear
that possible alternatives were consciously rejected.
3. The exclusion of twin norms
If our analysis is correct, the past constitution of Europe, as well as its revision,
namely the future TECE, excludes the EU from constitutional competence.
Thus, the only possible objection to this conclusion would be to claim that the
constitution is not in but outside the text of the constitution. Such a claim can
only be sustained if one succeeds in showing that the norms shaping the legal
system are outside the written provisions defining this legal system. This is not
absurd in itself. It may be that the texts that express the norms lack any form
of efficient application (as opposed to, say, containing weaknesses or irregularities); the norms could simply describe an ideal world without any connection to the facts of human conduct they are supposed to frame, as was the case,
for instance, in the former communist systems. But then one would have to
show that the texts lack legal relevance and, at the same time, would have
to identify the truly relevant norms.
3.1. Alternative-meaning theories
Three types of arguments are advanced in order to show that EU law is not
found in the text or at least not in the text as immanently interpreted.
According to the first view, the legal order of Europe is not determined by
the treaties, but by the ECJ, which has reframed competences and centralized
Community law in line with its own conceptions. This “common law theory of
European law” faces three difficulties, even if one does not dispute the fact that
the Court has often departed from the norms it had to apply and to guarantee.
First, if the theory were accurate, there would be no point in producing a
European constitution, as the case law of the Court alone would comprise that
constitution; and, if it made sense to enact a TECE, it would signify that the
Court was no longer a constitutional organ. Second, this theory is at odds with
the fact that the Court’s jurisprudence has been explicitly integrated into the
treaties as part of the acquis, be it the accession treaties of new member states
or revisions of the founding treaties (TEU art. 2 fifth dash). Third, it is not clear
whence this legal power of the Court derives if not from the Treaties—which
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A constitutional identity for Europe?
runs against the thesis—or else from the mere fact that courts make law, which
amounts to a claim of spontaneous generation.
The second view, advanced mainly under the heading “multi level constitutionalism,” draws on the already achieved integration of the EU and its member
states, which makes an indiscernible whole of them both. This conception may
yield insights at the factual and mainly political level, but it cannot avoid the
fact that the member states, as such, are not legally organized by EU law, but
instead shape the EU’s institutive instruments. Otherwise, it would beg the
issue that is at stake, namely, that European constitutional competence is
already vested in organs entirely framed by EU law.
The third approach draws on the texts of the treaties and recognizes their
legal framing value but contends that they should be read in an alternative
manner. This view comprises two strands. According to one, a constitution is
a constitution as soon as it claims to be one, especially by virtue of certain
elements that constitutions usually contain, that is, symbols, reference to an
anthem, a preamble, a solemn declaration, a charter of rights (regardless of
the legal status of these rights), and so forth. This conception is problematic, as
it amounts to saying that what counts legally is something that lacks legal
normativity. For if anthems, symbols, and the like, were endowed with such
normativity, they would be ordinary provisions and would have to assign
competences among organs. But then, there would be no point in drawing
on symbols, anthems, and the like, in the absence of normative provisions
attributing constitutional competence to the Union.
The second strand posits that the meaning of the text is different from what
can be deduced even though careful analysis. It relies on a theory of ambiguity according to which the explicit wording does not reflect the meaning of a
provision where certain expressions exceed the technical situation they seem
to frame. Such an approach often finds itself limited to implying that the
agreed-upon text reflects the fact that no genuine agreement can be reached,
and that there are hidden potentialities that may later come to the surface.
Classical examples of this pragmatico-hermeneutical approach can be found
in successive interpretations of the amendments to the U.S. Constitution or
of the real nature of France’s government (parliamentary or presidential or
semipresidential, with or without fundamental rights, etc.) as determined by
the French Constitution of 1958.
To know exactly what range of possibilities are covered by a set of expressions framing a legal provision is, of course, an important inquiry, and the
analysis of ambiguities is certainly a methodologically compelling element of
such a quest. However, if one contends that a text means something opposite
to what it appears to be saying, the burden of proof lies on the one who makes
a counterintuitive claim, all the more so if it goes against the findings of a
sufficiently careful reading.
The European situation has been subject to particular constraints from the
beginning, as highly antagonistic positions have had to work out feasible
O. Pfersmann
399
compromises. The classical opposition between the federalists and the partisans
of a loosely organized, mainly economic interstate cooperation or, at best, a
Europe of “fatherlands” especially seems to entail strong ambiguities in the most
general and otherwise harmless wordings. Interestingly, though, the equivocation that pervaded political discourse was much less in evidence in the relatively
technical legal texts. More precisely, there is little ambiguity in the realm of procedures but quite a bit of it associated with principles, the nature of the Union or
the Community, and future objectives. The more technical the former, the more
evasive the latter, and the more elusive, the more they lack precise normative
content. Treaty revisions were an occasion to reduce ambiguity, as when, for
instance new accession treaties make the acquis binding, attributing regular
legal status to what might originally have been acts without constitutional basis
or even violating the constitutional framework itself.
On the point of constitutional competence as constitutional autonomy, the
texts are not so ambiguous. It would be difficult to maintain that the states were
not entitled to ratify revisions of the treaty or not authorized to submit proposals for its amendment. It would be equally difficult to deny that the so-called
simplified revision procedure excludes modifications of competences or that a
convention that, which eventually could be mandated to draft a text for an ordinary revision, is not entitled to surpass its mandate or to devise its own procedure for ratification outside the rules laid down in articles IV-443–445.
Hence the claim that, contrary to the text, the Union would already have
more powers than what this interpretation has tried to establish seems difficult
to sustain. And it is particularly difficult to show that an ancillary meaning
implies, concretely and precisely, that constitutional competence is vested not
in the member states but in the Union and that it is embodied in a certain procedure. Not only does the text present very little ambiguity on this score, but its
successive drafts and the surrounding debates show that possible alternatives
were successively and explicitly excluded. Those who try to inflate the meaning
of “constitution” were left with discussions about symbols deprived of legal
relevance.
3.2. Successive restrictions
Different stages in this process may be distinguished. The problem was apparent
during the whole convention period as well as afterward during the intergovernmental conferences. But whereas the debate often turned on whether to introduce a different form of revision, which would have attributed constitutional
competence to the Union, this solution was strictly rejected at all the decisive
stages with a sharp distinction between constitutional heteronomy and autonomous procedures for declassified matters. No room was left for ambiguity.
At the first stage, the issue was either not identified or was addressed in
the most confusing way. Until a convention well and truly opens discussion on the
so-called “usual final clauses,” ambiguity will prevail concerning the very nature
of the new legal framework. Although the word “constitution” passes easily into
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A constitutional identity for Europe?
common parlance, it is absolutely not clear in what respect the document would
be different from just another treaty. When Valéry Giscard d’Estaing delivered his
inaugural address to the convention, he assigned to this colloquium a number of
tasks that were substantially the same as the requests put forward in connection
with the Laeken declaration. The only difference was semantic, and it was
expressed in a way that shows that the notion of constitution conveys, mainly,
symbolic and political content but is not expressed in a legal structure:
“Considering that our consensus focuses on this theme, we shall then open the
way toward a Constitution for Europe.” What exactly this constitution should
consist of is not spelled out. After this ambitious sentence, one finds only that
“. . . [i]n order to avoid any semantic quarrel, let us agree to call it today a constitutive treaty for Europe.”15 This means that in order to avoid a clarification which
would have preempted the issue and thus probably have induced a conflict and
eventually the failure of the whole enterprise, a formula had been chosen that
could be accepted by all possible conceptions. In fact, their formula limits the
message of the previous sentence, a “constitutive treaty” indeed being nothing
but an international convention that defines a certain legal framework. But the
previous treaties did exactly the same, if we leave aside the question of whether
their purported political aims were achieved. What remained, then, was and is a
mission of clarification, unification, and achievement of common acceptability,
not a change in constitutional competence. With the issue left unaddressed, one
could have expected either that the new covenant would come closer to
constitutional autonomy or that the old international structure would be maintained. Even though it seems that Giscard d’Estaing understood “constitution” in
a symbolic and political sense and not as a legal structure, at that stage one could
have contended that the use of the word “constitution” was ambiguous.
And so it remained until the convention had to settle the question.16 The
debate around constitutional competence appeared, of course, long before
that time, and it is not surprising that several proposals were again brought to
the floor when that body commenced its work. As they leaned toward constitutional autonomy,17 the doctrinal discussion focused on whether a treaty
15
Franceurope, Discours introductif du président Valéry Giscard d’Estaing à la Convention sur l’avenir
de l’Europe (Feb. 26, 2002), at 5, available at http://www.franceurope.org/pdf/contrib/
discours260202.pdf.
16
Giscard’s “avant-projet” is still mute on that point, see Praesidium, Preliminary draft
Constitutional Treaty, CONV 369/02 (Oct. 28, 2002), available at http://europeanconvention.eu.int/docs/sessPlen/00369.en2.pdf. Concerning the final provisions, one can find
just the titles related to the revision of the Treaty, but void of any content.
17
See, e.g., European Parliament, Projet de traité européen sur l’Union européen dit Projet Spinelli
[Project on the treaty establishing the European Union], art. 84 (Feb. 14, 1984) (setting the process
for revision under the procedure for organic laws, i.e. two-thirds majority of expressed votes), available
at http://www.franceurope.org/pdf/projet_spinelli.pdf; Robert Badinter, A European Constitution,
CONV 317/02 (Sept 30, 2002), art. 81, at 51(leading to the least rigidity in terms of constitutional
autonomy; revisions are adopted by a majority of two-thirds of the members the European
O. Pfersmann
401
possibly could be a constitution. While, in our view, the problem is ill-stated, it
does highlight ambiguity that could only be resolved in the context of competences and procedures.
As a second moment in this sequence, one may recall that attempts to
include a provision concerning the ratification of the new treaty, which
departed from the present article 48 TEU and provided for entry into force only
after a certain number or proportion of national ratifications, were not successful with regard to either the DT or the CT.18 Neither were provisions for
a special meeting of the European Council in the event that certain states
encountered difficulties in ratification or in meeting an obligation either to ratify within a certain time limit or to withdraw from the Union. The proposals
made in the working document of December 4, 2002, which the Commission
transmitted but did not endorse,19 as well as those by convention member
Andrew Duff 20—to split the whole ratification procedure into a first, short
treaty amending only article 48 TEU and then to ratify the new treaty according
to this new procedure—were likewise not pursued further.
To continue pursuing this line of thought regarding competence, one
needs to show that there was at least some hesitation on the part of the
drafters concerning the meaning of the norms framing future revisions. But
all one finds are attempts to introduce different rules and decisions not to
pursue this course. The amendments submitted to the convention illustrate
the different strands of thought: procedural differentiation with declassification, procedural differentiation with constitutional autonomy, strict
international public law procedures, the cumulation of international
Parliament); Draft of a European Constitutional Treaty, in THE BIRTH OF A EUROPEAN CONSTITUTIONAL
ORDER (Jürgen Schwarze ed., Nomos 2001), arts. 114–115 (requiring unanimity in Council and
three-quarters of the “European Congress,” an organ elected by members of the national as well as
European parliaments); Andrew Duff, A Model Constitution for a Federal Union of Europe, CONV
234/02 (Sept. 3, 2002), art. 18, at 7; Elena Paciotti, A draft constitution for the European Union,
CONV 335/02 (Nov. 19, 2002), arts. 117, at 42 (for the “Constitution”—which one is to suppose,
although it is not precisely determined, the more “important” provisions—drafting power to a
Convention, then IGC with a majority of four fifths and ratification by a majority of States totaling
two-thirds of the European population), and 118, at 43 (for the “Treaty,” i.e., the less important part,
IGC, with two-thirds majority of representatives and ratification by a majority of States totaling twothirds of the European population); Brok, Constitution of the European Union, CONV 325/02 (Oct. 8,
2002), art. 180, at 89 (requiring assent of the European Parliament and ratification by all member
states). All CONV documents are available at http://european-convention.eu.int.
18
See Secretariat of the European Convention, Summary sheet of proposals for amendments relating
to the general and final provisions: Draft articles for Part Three (Article A to I), CONV 673/03 (April
14, 2003), at 16, available at http://register.consilium.eu.int/pdf/en/03/cv00/cv00673en03.pdf.
19
European Commission, Feasibility Study. Contribution to a Preliminary Draft Constitution of
the European Union Working Document, available at http://europa.eu.int/constitution/futurum/
documents/offtext/const051202_en.pdf.
20
See Andrew Duff, How to bring the Constitution into force, CONV 764/03 (May 28, 2003),
available at http://register.consilium.eu.int/pdf/en/03/cv00/cv00764en03.pdf.
402
A constitutional identity for Europe?
ratification and referendum, or the differentiation of drafting power and
power of acceptance.
Not only is there a clear opposition between those who want to relinquish
international competence and those who want to keep it, and between those
who want to declassify certain provisions without effect on competences and
those who want to maintain all the norms of the treaty on a par; but the fact
that these issues are explicitly brought to the fore also shows that they are not
resolved by using the term constitution. On the contrary, these questions are
discussed for their own sake without any suggestion that having a constitution
would have any bearing on them.
The third stage is found in the restrictive position taken by the praesidium
of the convention, which was, as we have seen, clearly confronted with diverse
choices, all formulated in terms of procedural rules.
Replying to the various amendment proposals concerning the revision
clause, the praesidium admitted in its revised draft a possible alternative
procedure—with the convention or without—leaving it to the European
Council, after consulting the European Parliament and Commission, and eventually the European Central Bank, to decide by simple majority whether to
follow the first path or the second regarding competence.21 The Council has a
very important power in determining this option and in defining the terms of
reference for the intergovernmental conference. However, the acceptance by
the intergovernmental conference and ratification by the member states would
remain the same as in the present TEU. The text thus retained would know of
no revision procedures other than plain ratification.
In the comments to the draft text, the praesidium made two statements.
First it declared that it
has not taken on board the suggestion from some quarters for different methods of amendment for different parts of the Constitution
(more complex for Parts One, Two and Four; less complex for Part
Three), given that some of the provisions of Part Three were closely
linked to the provisions of Part One and should therefore be subject
to the same amendment procedure. In addition, laying down different
amendment procedures for Parts One and Three would mean re-opening
discussion on the structure of the Constitutional Treaty, as it would give
rise to requests for certain areas of Part Three to be moved to Part One.22
Second, it recognized, in a passage already quoted, that
. . . in order to accommodate requests for more flexible amendment
procedures in some cases, the Presidium considers it preferable to provide for a streamlined amendment option (Council acting unanimously,
21
CONV 728/03, supra note 13, at 4.
22
Id. at 10.
O. Pfersmann
403
after consultation of the European Parliament, without ratification by
national Parliaments) for certain provisions of Part Three which do not
affect the objectives, values or competences of the Union.23
Curiously, there is no trace to be found of this streamlined amendment
option—in the paper quoted here or in the draft adopted by the convention in
Rome on July 18, 2003.
This can only mean that the convention was plainly aware of the question
and, after entertaining different possibilities, opted for the version finally
transmitted to the European Council. This may be seen as highly significant, as
Valéry Giscard d’Estaing’s final presentation of the convention’s work
remained, at first sight, very confusing, full of “constitutional” enthusiasm,24
and devoid of structural content. After setting forth the architecture of the
draft, and before observing that, in his view, the main tasks had been successfully achieved, Giscard says only that “. . . the fourth Part states the usual final
clauses.”25 It is indeed usual for the final clauses of a legal document to state
the methods of its revision, but regarding these as “usual final clauses” would
mean that no structural change was expected. Whatever ambiguity remains
in Giscard’s discourse, or in the parlance of many other actors, it can no longer
concern the crucial question of constitutional competence.
But the DT is not only a response to the convention members’ requests for
amendments but also a reply to the Commission. The working document dated
December 4, 2002, clearly identifies and analyzes the present situation in
terms of an eventual deadlock on possible changes of the future treaty.26 It
proposes that the requirement of ratification by all member states be removed
in any event from the revision proper, except in the case of accession of new
members, and it differentiates the procedures for the other hypotheses according to the supposed importance of the matter at stake.27
In the opinion of the Commission dated September 17, 2003, pursuant to
article 48 TEU,28 this approach is significantly modified in the direction of the
differentiation of procedures eventually retained by the presidency and the
CT. The strong constitutional autonomy advocated in the feasibility study is
abandoned for traditional rigidity in matters of competence and internal
23
Id.
24
Enthusiasm is an important topic of his inaugural address, supra note 15.
25
European Convention, Oral Report presented to the European Council in Thessalonica,
SN 173/03 (June 20, 2003), at 5, available at http://european-convention.eu.int/docs/
Treaty/VGE_EN.pdf.
26
See generally Feasibility Study, supra note 19.
27
See Feasibility Study, art. 101, at 29.
28
A Constitution for the Union: Opinion of the Commission, pursuant to Article 48 of the Treaty
on European Union, on the Conference of representatives of Member States’ governments
convened to revise the Treaty, COM(2003)548 final.
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A constitutional identity for Europe?
flexibility in matters of policies. The Commission, however, explicitly states:
“[t]his state of affairs could lead to total paralysis of the Union and eventually to
a loss of interest on the part of the Member States and citizens as regards this
form of integration, in favor of less effective models of cooperation or even
cooperation between only some Member States.”29 Flexibility is urged for
modifications of part III. A five-sixths majority of the European Council would
be necessary after approval by the “European Parliament and a favorable opinion from the Commission; unanimity would remain a requirement in cases
where the proposed amendment would alter the Union’s competences or the
balance between the institutions.”30
Again, the possibility of constitutional autonomy is identified and determined in terms of precise procedures before being rejected in favor of constitutional heteronomy.
The Italian presidency took a different view from the convention,31 which
finally prevailed in the previously analyzed CT, the last stage in this venture.
Compared to the DT, the CT seems to open the way for some constitutional
autonomy, although the simplified methods of revision apply only to nonconstitutional questions. Declassification is, indeed, an important structural issue,
but the precise delimitation of these procedures only serves to underscore the
same result: the revised constitution still precludes the EU from constitutional
competence without any possible ambiguity. All the changes and final
choices are made explicitly, even as the word “constitution” is left as it stands.
Notwithstanding the decisions concerning the procedures for norm production, the meaning of that word is not an issue. It may mean many things
outside the juridical context, but in the Treaty establishing a Constitution
for Europe as a legal document, it cannot mean what the provisions exclude.
Quod erat demonstrandum.
29
Id. at 8 [emphasis by Commission].
30
Id.
31
See, e.g., Presidency, IGC 2003—Treaty Revision, CIG 46/03 (Nov. 11, 2003), available at
http://ue.eu.int/igcpdf/en/03/cg00/cg00046.en03.pdf; Presidency, IGC 2003—Naples
Ministerial Conclave: Presidency Proposal, CIG52/1/03 REV 1 (November 25, 2003), at 9,
available at http://ue.eu.int/igcpdf/en/03/cg00/cg00052-re01.en03.pdf.