The importance of being called a
constitution: Constitutional authority
and the authority of constitutionalism
Miguel Poiares Maduro*
1. Introduction
The currency of constitutionalism has become the dominant one in debates
on European integration. But do we really know what we mean by constitutionalism in the European Union (EU)? We have moved from talking about a process
of constitutionalization to questioning whether such a process represents a
European constitution (does Europe have a constitution?) to discussing whether
the Union requires a formal constitution (does Europe need a constitution?). Two
issues underlie both these discussions: whether constitutionalism is the best
form of power1 for the EU to wield and whether the EU has the constitutional
authority (in the form of a pouvoir constituant) to adopt this form of power.
Current debates on the new constitutional treaty reflect this perpetual balancing between questions of the authority of constitutionalism and constitutional authority. The question of what is in the name “constitution” involves, in
reality, two different constitutional questions. The first concerns the extent to
which the new constitutional treaty will affect the way in which constitutionalism, as a normative theory of power, regulates the EU. The second arises from the
fear (or aspiration, depending on one’s point of view) that the new constitutional
treaty will express, in the form of a document embodying the sovereign will of a
people, the assumption of constitutional authority by the EU.
The way in which one answers these different questions, in the context of
the European Union, is influenced by the way in which we conceive of constitutionalism in general (what purposes does it serve?) and which concept of a
political community we embrace (what kind of social and political relationship
must it embody?). Understood as a normative theory,2 constitutionalism has
* Advocate General at the Court of Justice of the European Communities. The views expressed are my
own. I would like to thank Kieran Bradley, Carlos Closa, and Mattias Kumm for their comments on this
paper. Email: [email protected] doi:10.1093/icon/moi023
1
The definition of constitutionalism as the form of power can be found in FRANCISCO RUBIO LLORENTE,
LA FORMA DEL PODER [THE FORM OF POWER] (1st ed., Centro de Estudios Constitucionales 1993).
2
I mean a notion of constitutionalism that embraces a particular form of organizing power, not a
neutral label signifying any fundamental document that sets forth the organizational principles of
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M. P. Maduro
333
been thought of as a set of legal and political instruments limiting power
(constitutionalism as limit to power). But it has also been conceptualized as a
repository of the notions of the common good prevalent in a certain community
and as an instrument for organizing power in pursuit of that common good
(constitutionalism as an expression of polity). In between, it is possible to
stress, instead, the role of constitutionalism in creating a deliberative framework
in which competing notions of the common good can be made compatible or
arbitrated in a manner acceptable to all, thereby balancing democratic
concerns with the control of the political process by a few with the risk of a
tyranny by the many (constitutionalism as deliberation).
The extent to which constitutionalism can assume these three functions in
a particular political community depends on the character of that community.
For these purposes, a distinction may be made between two types of social
orders. The first would be a constitutional political community, where individuals are regarded as the dominant political subjects and their interests are
directly aggregated, with deliberation being based on the promotion of universal rules guaranteed, ex ante, by its generality and abstraction and, ex post, by
non-discrimination. The second may be described as an intergovernmental
political community, where individual interests are aggregated through the
states and deliberation does not aim at universal rules based on the individual
status of citizens but reflects the bargaining power of states and generates
accommodations among their perceived conflicts of interest.
The three functions of constitutionalism and their relationship with different
notions of the European polity and polities underpin the essential purpose of this
essay: to identify the changing nature of European constitutionalism and its
relationship with different forms of authority (normative, political, and constitutional). My thesis is that the role of constitutionalism, with regard to these
different forms of authority, is changing within the EU and that its function
depends on the relationship between European constitutionalism and the prevailing notions of underlying political community and constitutional authority.
The extent of constitutionalism in the Union, so far, has been limited by its
instrumental relation to an intergovernmental political community where the
EU’s constitutional authority is derived from the member states.3 However, this
relationship may have to be changed in light of changes in the legal regime
resulting from the EU’s current constitutional processes. Though it may be
argued that the constitutional treaty still does not represent an exercise of
pouvoir constituant and, as a consequence, the Union still lacks constitutional
authority, it may also be the case that the treaty’s changes of regime both
a system or organization. In this latter sense, as one attendee at the Convention on the Future of
Europe remarked, one can find constitutions in the most diverse settings, from the United Nations
Charter to the statutes of a golf club.
3
As will be made clear below, this lack of constitutional authority should not be confused with the
issue of constitutional primacy or supremacy of EU rules.
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A constitutional identity for Europe?
presuppose and require an extension of the authority of constitutionalism in the
EU. This raises questions regarding the tension between the lack of constitutional
authority and the demands for the increased authority of constitutionalism in
the Union, as well as questions regarding the extent to which European constitutionalism can assume the three core functions of constitutionalism.
I will begin by recalling the process that Joseph Weiler has described as the
“transformation of Europe.” This process included the dynamics of constitutionalization and of Europeanization, enabling Europe to lay claim to the
normative and political authority expressed in the doctrines of supremacy
and direct effect and leading to its emergence as a community of open and
indeterminate political goals. The legitimacy of this process was founded on
a functional understanding of the original Communities and was linked with
a limited form of constitutionalism (that I would describe as “low-intensity
constitutionalism”). But this process did not affect the deliberative nature of
the political process, which remained predominantly intergovernmental, since
it was clear that the states were the masters of the treaties. They were the
dominant political subjects of the Communities, understood as an intergovernmental polity. The constitutional form of power was strictly limited to the
adoption of the instruments of constitutionalism necessary to limit and, at
the same time, legitimate the normative and political authority claimed. It did
not affect the nature of political deliberation (centered in the states); nor did it
aim at developing the identity of a polity.
The incremental nature of the normative and political authority acquired by
the EU and the pressures created by the enlargement have led to a crisis over the
form of European constitutionalism and an increased tension in its relation with
intergovernmentalism. After describing this crisis, I will discuss how the current
constitutional treaty tries to resolve that tension yet, at the same time, reinforces
it. This is as much a consequence of pragmatic needs as of normative choices.
I will review the constitutional nature of the constitutional treaty, paying due
attention to the forms of authority mentioned above and to the relationship
between constitutionalism and intergovernmentalism. My overall argument is
that although the new constitutional treaty may not represent an exercise in
pouvoir constituant, capable of embodying a traditional form of constitutional
authority, it may, nonetheless, further extend the authority of constitutionalism
in governing the EU. The secret of a successful European Union will lie in being
able to extend the nature of its constitutionalism without replacing the constitutional authority of the member states with its own.
2. “The Transformation of Europe” revisited: The birth
of political and normative authority
In 1991, Joseph Weiler published what has become a most famous essay
describing the evolution of the process of European integration in its legal,
M. P. Maduro
335
political and economic context, entitled “The Transformation of Europe.”4 In it,
he explains the constitutionalization undertaken by the European Communities
and how it had been possible. Building on his previous thesis of the dual character of supranationality,5 Weiler explains how the adoption of normative
supranationality (the adoption of European rules with federal authority over
state rules) was linked to intergovernmental decision making (state control and
veto power over the decision-making process). But in that piece and subsequent
work,6 Weiler also highlighted how some of the constitutional doctrines
adopted by the European Court of Justice (ECJ), notably the protection of fundamental rights, could be linked to the supremacy and direct effect acquired by
European rules. In other words, Community law’s claim to normative authority
required the adoption of constitutional doctrines to not only legitimate but also
control that authority. One can, therefore, add to Weiler’s two-dimensional
model (normative supranationalism with intergovernmental decision making)
the dimension of constitutionalism. However, this constitutional dimension is
linked exclusively to the area dominated by normative supranationalism. It is
with respect to the areas subject to normative supranationalism that constitutional doctrines appear both to sustain and to control that normative supranationalism. This has limited the scope of European constitutionalism.
As Weiler notes with regard to fundamental rights protection, the emergent
constitutional doctrine was “designed to control a gouvernement des fonctionnaires.”7 It was not directed primordially at controlling intergovernmental
decision making since this was perceived to benefit from the traditional indirect democratic and constitutional legitimacy provided by the states. Where
states still fully controlled the process of decision making no real question of
legitimacy was raised. This was bound to determine the nature of constitutional review in the new European Community. For example, under European
constitutionalism, no one thought it a priority to provide for the review of a
unanimous decision of member states in the Council.8
Constitutionalism in Europe came about, on the one hand, to support the
normative supremacy of its own rules and to prevent states from disregarding
4
Joseph Weiler, The Transformation of Europe, 100 YALE L.J. 2403 (1991).
5
Joseph Weiler, The Community System: the Dual Character of Supranationality, 1 Y.B. EUR. L. 267
(1981).
6
Joseph Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of
Justice in the Protection of Fundamental Human Rights Within the Legal Order of the European
Communities, 61 WASH. L. REV. 1103 (1986).
7
8
Id.
One can find only two instances in which Council legislative acts were struck down in light of
fundamental rights and even these were marginal instances. See Case C-49/88, Al-Jubail Fertilizer
Company (Samad) and Saudi Arabian Fertilizer Company (Safco) v. Council, [1991] ECR I-3187 (dealing with the right to a fair hearing); Cases C-364, 365/95, T. Port GmbH & Co. v. Hauptzollamt
Hamburg-Jonas, [1998] ECR I-1023 (joined cases dealing with nondiscrimination).
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A constitutional identity for Europe?
the interests of the broader European Community and, on the other, to control
the Community’s nascent bureaucracy and autonomous centers of power,
which could no longer be controlled by the constitutional orders and democratic constituencies of its member states.
To illustrate how this resulted in a particular form of constitutionalism,
I will try to identify, in the transformation of Europe described by Weiler, the
trademarks of European constitutionalism and its relation with the constitutional questions currently faced by the Union. My aim is to show how the
normative foundation of the constitutionalization process derives from a claim
of independent normative authority whose connection with a process of
Europeanization lies at the heart of the current constitutional questions faced
by the Union. Furthermore, I will try to show how the legitimacy of the process
of constitutionalization was linked to a particular notion of constitutionalism
as well as its relationship with intergovernmentalism.
The classical literature on European integration has described how the case
law of the ECJ developed a constitutional architecture for Community law
founded on the principles of direct effect and supremacy. These principles were
complemented by the adoption of constitutional law concepts such as fundamental rights, implied competences, state liability, enforcement mechanisms,
separation of powers, and, broadly, the notion of a community of law—the EU
equivalent of Staatsrecht or the rule of law.9 According to Weiler:
The constitutional thesis claims that in critical aspects the Community
has evolved and behaves as if its founding instrument were not a Treaty
governed by international law but, to use the language of the ECJ, “a
constitutional charter governed by a form of constitutional law.”10
This constitutional construction was legitimated by the Court on the basis
of what one could call an epistemological shift in the understanding of EC law
and the source of its normative authority. When the ECJ, in its path-breaking
decisions, took EC law to be an autonomous legal order, it did so on the basis of
a presumed direct relation with the peoples of Europe.11 It was this premise
that accorded an independent normative authority to the European
Communities (later the EU) and its legal order. It would have been possible, as
9
JOSEPH WEILER, THE CONSTITUTION OF EUROPE: ‘DO THE NEW CLOTHES HAVE AN EMPEROR?’ AND OTHER
ESSAYS ON EUROPEAN INTEGRATION (Cambridge Univ. Press 1999); Koen Lenaerts, Constitutionalism
and the Many Faces of Federalism, 38 AM. J. COMP. L. 205 (1990); Eric Stein, Lawyers, Judges and the
Making of a Transnational Constitution, 25 AM. J. INT’L. L. 1 (1981); Federico Mancini, The Making of
a Constitution for Europe, 26 COMMON MKT. L. REV. 595 (1989).
10
Joseph Weiler, The Reformation of European Constitutionalism, 35 J. COMMON MKT. STUD. 98 (1997).
Some authors go further than talking about the constitutionalization of E.U. law.
11
See Case C-6/64, Costa v. ENEL, [1964] ECR 585; Case C-26/62, Van Gend en Loos, [1963]
ECR 1.
M. P. Maduro
337
Bruno de Witte has powerfully explained,12 to base the supremacy and direct
effect of Community law on its recognition in national legal orders, particularly,
national constitutional law. However, this vision was not the one embraced by
the ECJ and by most national courts—to wit, that entrusting to the European
Court the resolution of conflicts of authority between national and European
norms constituted an implicit recognition that such conflicts were to be
decided at the European level.
The European Court of Justice, supported by national courts, founded the
direct effect and supremacy of Community law on a direct relation between
Community norms and the peoples of Europe. The treaty is presented as much
more than an agreement among states; it is an agreement among the peoples
of Europe that establishes this direct relationship between EC law and those
peoples.13 That source of direct legitimacy establishes a political link authorizing a claim of independent normative authority. Legal authority was to be
derived, therefore, from an autonomous conception of the European legal
order. This corresponds to a claim of independent normative authority that
means the European Communities are, in the words of the Court, endowed
with sovereign rights.14 And this normative authority entitles the European
legal order to circumscribe the limits of national legal orders. It further grants
to European rules the authority to derogate from the application of national
constitutional rules corresponding to a de facto attribution of constitutional
supremacy vis-à-vis those national rules.15
The assumption of independent normative authority has required the
adoption of constitutional doctrines to constrain and legitimate that authority.
In the process of European integration, constitutionalism as the prevailing
form of power followed the claim of normative authority and not vice versa. It
was thus a constitutionalism instrumental to and limited by that claim of normative authority. The constitutional supremacy of EC rules, therefore, did not
reflect therefore the assumption of a constitutional authority in the sense of a
pouvoir constituant, that is, the power of a polity to define its own destiny.
Nevertheless, the normative autonomy of Community law, whose legitimacy flows directly from the peoples of Europe and is, thus, not dependent on
the states, has also allowed for the expansion of the political ambitions inherent
in the process of European integration. This was reinforced by the functional
dynamics of the process of economic integration and by the slow but increased
shift of political action from the national to the European arena. As a consequence, independent normative authority has been complemented by
12
Bruno de Witte, Direct Effect, Supremacy and the Nature of the Legal Order, in THE EVOLUTION OF E.U.
LAW 181, 209 (Paul Craig & Gráinne de Burca eds., Oxford Univ. Press 1999).
13
See Van Gend en Loos, supra note 11, at 3.
14
Id.
15
Not to be confused with constitutional authority as defined below—the existence of pouvoir
constituant.
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A constitutional identity for Europe?
increased independent political authority, that is, the autonomy to define the
forms and goals of political action. This is most apparent in a series of phenomena that can be classified under the general heading of Europeanization.
In itself, the process of constitutionalization would not have raised important
constitutional challenges so long as the use of the normative authority assumed
by Europe remained within the boundaries of clearly delimited competences,
traceable to express delegations from the states or strictly controlled by these.
What raised the current constitutional challenges was the association between
constitutionalization—a claim of independent normative authority—and
Europeanization—the emergence of a community of open and indeterminate
political goals subject to increased majoritarian decision making.
The first element of Europeanization relates to the growth of Community
and EU competences. In parallel to the process of constitutionalization, EU law
has also seen its scope of action and EU competences extend beyond the initial
limits of the treaties. This means that the European Union has taken over
many traditional functions of governance and, even with regard to those still
retained by the states, it exercises an increased supervisory role, limiting the
self-governing powers of the states. These developments have turned the
European Union into a new space for political action with regard to the framing of open and unspecified political goals. The limits of Union action are no
longer defined by the express competences that the states have attributed to it
and are, instead, the flexible product of political action by a broad variety of
social actors. These participants in the European political space attempt to
promote their interests at a new level of decision making with such political
authority as will allow for the pursuit of a broad and highly indeterminate set
of public goals. Inherent in this is a conception of the European Union as
a political community that could take over many of the states’ traditional
functions of governance and where many of the policies of the latter could be
subject to new deliberations.
But this Europeanization did not take place only with regard to the competences transferred from the states to the European Union. The way in which
such competences are exercised also has been progressively Europeanized
through the move from unanimous to majoritarian decision making.
The evolving definition of EU policies with regard to a European majority
means that they are no longer the result of a cooperative process among member states. Member states have gradually relinquished their individual control
over the decisions of the European Union. This has been increasingly the
product of a European political process determined not only by the will of a
majority of states but also of a majority of Europeans. Moreover, states have
progressively loosened their dominance in representing those Europeans. As a
consequence, Europeanization reflects not only the extension of EU competences but also the Europeanization of the way in which they are exercised.
The degree of control exercised over EU policies by individual states decreases
in three ways as EU decision making moves from unanimous to majoritarian
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M. P. Maduro
decisions: through majoritarian voting rules; through increased proportional
representation; and by virtue of the appearance of new political actors beyond
the states.
There is a final element in the process of Europeanization that is related to
the degree of EU control and the impact on those policies that continue to be
pursued by the states, whether exclusively or concurrently with the Union. A
key role in the Europeanization of nation states has been played by the market
integration rules of the treaty and by the simple dynamics generated by
economic integration itself. In the first place, the Europeanization of national
policies through market integration can be seen in the way in which the exercise of national competences is constrained by the application of the rules of
market integration. A good example may be found in the interpretation of the
free movement rules and their use in challenging different areas of national
legislation that impact on the market.16 This meant that EU law would often
second-guess the reasonableness of national policies in areas such as
consumer, environmental, or health protection.
Another example of this indirect Europeanization of national policies is the
use by the Commission of its discretionary power in authorizing state aids in
order to develop de facto the elements of an EU industrial policy. The possibility of states granting aids to companies in economic difficulties, for example,
was made dependent on the national adoption of criteria regarding the
economic viability and restructuring of those companies.
All these examples are part of the process Sabino Casesse refers to as
“ ‘comunitarizazione’ di funzione nazionali” (the “communitarization” of
national functions).17 Such a process is further reinforced by the mechanism
of regulatory competition among states, which is generated by the internal
market and the mobility it entails. The “forum shopping”—by companies, consumers, and taxpayers—allowed by economic integration and market competition challenges the autonomy of states even in the realm of policies thought
to be within their exclusive domain, such as those shaping distributive justice.
Even if social security, or tax policies, for example, are regulated at the EU level
only to a limited extent, their national definition must now take into account
the constraints arising from the mobility of companies and persons among
member states.
If one wants to be even more provocative, one could say that national
constitutions themselves have been Europeanized. For example, European
integration has affected the domestic separation of powers within states.
National governments can use the legislative powers of the European Council
to overcome the opposition of national parliaments or assume their reserved
areas of competence. In the same way, national courts frequently have been
16
MIGUEL P. MADURO, WE THE COURT: THE EUROPEAN COURT
CONSTITUTION (Hart 1997).
17
OF JUSTICE AND THE
EUROPEAN ECONOMIC
Sabino Casesse, La Costituzione Europea, QUADERNI COSTITUZIONALI 487 (1991).
340
A constitutional identity for Europe?
empowered by EU law, acquiring powers of judicial review with regard
to national legislation even where that was not the case under their own
constitutions.
It is increasingly difficult to define an area of the member states’ traditional
governance functions that is not, directly or indirectly, impacted by the
European Union. The constitutional transformation of Europe is also a constitutional transformation of the member states. This is a natural consequence of
the emergence of a common economic and political space at the European level
that has gradually complemented the normative authority of the Union with a
growing political authority. Given this state of affairs, the question of constitutional relevance is this: What form of constitutionalism should the European
Union acquire and how should it relate to national constitutionalism?
3. Low-intensity constitutionalism
The constitutionalization of the treaties created a constitutional body without
discussing its soul. The constitutionalism emerging from the development of
European integration was a peculiar type that was never clearly defined—
what I have described as low-intensity constitutionalism. It was characterized
by several elements. In the first place, this was an incremental, bottom-up
constitutionalism—the product not of a constitutional moment18 but, rather,
of a gradual judicial and political development that was often constructed by
reference to national constitutional sources. It was a product of intergovernmental developments, in the form of treaty revisions, combined with constitutional interpretation by the ECJ in cooperation with a constituency of legal and
political actors, both national and supranational (in particular, national
courts and litigants, and the European Commission).19
The low intensity of this European constitutionalism is reflected in the
absence of a two-track democracy. There was no substantial difference
between the legislative and constitutional processes. Both were dominated by
an intergovernmental legitimacy based on providing democracy to Europe
through the states. This further helps to explain the extent of judicial deference toward the legislative process in the Council.20
The authority of this emergent constitutionalism was constantly questioned by national constitutions and was subject to the “veto right” of national
18
On this point see generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (Harvard Univ. Press
1993).
19
Miguel P. Maduro, Contrapunctual Law: Europe’s Constitutional Pluralism in Action, in SOVEREIGNTY
the role and dynamics
of those different actors, see ALEC STONE SWEET, THE JUDICIAL CONSTRUCTION OF EUROPE (Oxford Univ.
Press 2004).
IN TRANSITION (Neil Walker ed., Hart 2003). For a comprehensive analysis of
20
As mentioned above, it is a different story when an independent bureaucracy, without direct
democratic legitimacy and without benefit of such intergovernmental legitimacy, dominates the
executive.
341
M. P. Maduro
courts.21 It is not surprising, therefore, that it was, in part, a “defensive”
constitutionalism. It did not purport to reflect a social or political contract that
would empower and organize the Union so as to promote a vision of the common good or to resolve conflicts between competing visions of the common
good. Instead, it chiefly consisted of the adoption of a series of constitutional
doctrines necessary to justify and legitimate the assumption of normative and
political authority by the European Communities. Concepts such as fundamental rights, separation of powers (embodied in the notion of institutional
balance), and the rule of law (“a Community of law” in the words of the
Court)22 were seen as guaranteeing that the power assumed by the European
Communities was subject to the same limits and constraints as that being
exercised at the national level. But these constitutional concepts did not affect
the way the political process operated or how it aggregated the different interests at stake. This was the domain of intergovernmental politics. While states
aggregated individual interests through the mechanisms of democratic deliberation at the national level, Community policy making was dominated by the
logic of intergovernmental bargaining among the national interests expressed
by the states. Constitutionalism as a form of deliberation was left to the domain
of national political communities.
When European constitutionalism was used to promote the Communities’
authority to encroach on the sovereign spheres of the states, this was legitimated either by the extent to which the states had had a voice in the deliberation
process or by framing that encroachment as protecting freedom and individual
rights (in other words, reinforcing constitutional control over power). It is
notable, with regard to the latter, that the areas where the Community began
to evolve toward majoritarian decision making were those directly related to
the internal market. These were easier to legitimate both by a functional
construction of the Communities and by invoking a concept of constitutionalism simply as a limit to power.
European constitutionalism, thus, is linked to two different visions of the
legitimacy of the process of European integration. The first is represented by a
functional and technocratic conception of the European Union as an efficiencyoriented, problem-solving entity to which states delegate the resolution of collective problems they can no longer address individually.23 The second follows
the tradition of limited government and conceives of the process of European
integration as a new constitutional constraint on public power, protecting
21
Damian Chalmers, Judicial Preferences and the Community Legal Order, 60 MOD. L. REV. 164
(1996).
22
See Case C-50/00 P., UPA v. Council, [2002] ECR I-6677, pt. 38; Case C-294/83, “Les Verts”,
[1986] ECR 1339, pt. 23.
23
GIANDOMENICO MAJONE, THE EUROPEAN COMMUNITY
Law 1995).
AS A
REGULATORY STATE (Academy of European
342
A constitutional identity for Europe?
freedom and private autonomy.24 In this case, and in this way, European
constitutionalism is perceived as reinforcing national constitutionalism. It is
not linked to the creation of a European polity but is limited to the control of
European and national forms of power. Both these visions of legitimacy
assume that European constitutionalism is framed by and limited by national
political communities.
Functional legitimacy worked well with intergovernmental deliberation.
Limited goals, which were instrumental or complementary to the state and did
not have redistributive effects, both justified and were justified by a form of
deliberation centered on the aggregation and conciliation of state interests.
Moreover, a limited form of constitutionalism provided an appropriate constitutional guarantee to the bureaucratic powers emerging from such a project.
Where the Union encroached on states’ sovereignty, this version of legitimacy
was supplemented by the appeal to the protection of freedom and private
autonomy in the face of power. European constitutionalism appeared, in this
light, as an external but self-imposed constitutional constraint aimed at
reinforcing domestic constitutional limits on the power of the state. It was
perceived, in effect, as an instrument of state constitutional values.
As mentioned above, this construction of European constitutionalism and
the legitimacy of European integration left the aggregation of individual interests to the states. The common good was either defined by an agreement
between states or conceived of as the protection of private autonomy and freedom enshrined in the logic of market integration and efficiency-enhancing
policies. This also rationalized the priorities and agenda of judicial review,
which was to focus on the integration of markets, the review of state action,
and the control of the European bureaucracy’s executive power. A higher
deference was to be accorded to the intergovernmental process, which was
legitimated by consensus among states.
Constitutionalism existed as a set of legal instruments to solve conflicts of
power between the Communities and the states and to set limits on those
powers. But such constitutionalism was not intended to be an expression of a
European polity; nor was constitutionalism adopted as the form of deliberation
in the European political sphere. Law was dominated by constitutional
doctrines but politics and deliberation remained intergovernmental, based on
the aggregation of interests through the states and on policies that expressed
the bargains made among them. Individuals were not regarded as the primary
political subjects and principals of the European Communities, and this was
reflected in the conception of its political process. Policies were not drafted, as
a consequence, to uphold the constitutional values of universality, generality,
and abstraction in light of the individual conditions of European citizens.
24
See ERNST-ULRICH PETERSMANN, CONSTITUTIONAL FUNCTIONS AND CONSTITUTIONAL PROBLEMS OF
INTERNATIONAL ECONOMIC LAW (Fryeburg: University Press, 1991); see also FRIEDRICH HAYEK, THE ROAD
TO SERFDOM (Routledge 1944).
M. P. Maduro
343
Instead, European citizens were treated by European policies in accordance
with the bargains struck by their respective states. Political intergovernmentalism and constitutionalism, as limits to power, dominated the arena.
Meanwhile, both deliberative and polity constitutionalism were left to the
states. While the European Communities were claiming normative and
political authority requiring constitutionalism as the proper form of such
power, those claims did not and could not extend to constitutional authority.
As a consequence, European constitutionalism was limited by the underlying
authority of national political communities. Political intergovernmentalism
with limited constitutionalism was the way to reconcile the opposing forces.
This twofold strategy for ensuring legitimacy, however, is being progressively challenged by the extent and nature of the powers assumed by the
Union. The incremental nature of normative and political authority either
requires some underlying constitutional authority or enters into increased
conflict with national constitutional authority. Functional legitimacy is not
capable of adapting itself to an emerging polity of open-ended goals whose
policies have increasingly redistributive effects and in which the political
dynamics increasingly evade the control of the state. Further, the growing
impact of European policies on national democratic deliberations cannot
continue to be justified as protecting freedom and private autonomy without
transforming these goals into dominant societal goals. But such a conclusion,
naturally, will be opposed by many at both the EU and national levels.
4. The polity question
Slowly, the Union has become dissatisfied with its traditional low-intensity
constitutionalism coupled with political intergovernmentalism. The political
transformation of Europe has challenged some of the conditions for political
organization in Europe at both Union and state levels. Thus the EU challenged
the constitutional basis of the states without providing a clear deliberative
alternative for the definition of the common good. At the same time, the
processes of constitutionalization and Europeanization raised new claims for
legitimacy in the European Union. The claims of political and normative
authority cannot be sufficiently legitimated by the functional rationale and the
low-intensity constitutionalism described above. The answers to these challenges increasingly demand an inquiry into the nature of the European polity
and its relationship with national polities. As matters stand, they are not
compatible, given a strict separation between constitutionalism and the question
of the political community.
The issue of the democratic deficit is the constitutional problem most often
highlighted in EU debates. This concern was reflected in the agenda of the
Convention on the Future of Europe in items dealing, for example, with the
participation of national parliaments, transparency, and fundamental rights
protection. It also shaped the debate on institutional reform which, contrary to
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A constitutional identity for Europe?
the initial plans, turned out to be one of the key issues addressed in the context
of the constitutional treaty.
There are different accounts of the democratic deficit. The most common of
these links the democratic deficit of the EU to the secondary position of the
European Parliament vis-à-vis other European institutions in the Union’s
decision-making processes. Despite the legal and political developments that
have reinforced the position of the European Parliament in the EU’s institutional framework, it is still characterized by a lesser degree of parliamentary
representation and majority decision making in the European political process
than its counterparts in national democracies. The expanded competences of
the European Union have provoked claims of a democratic deficit because
powers previously under the control of national parliaments are being transferred to the EU level where they are subject to a lower degree of parliamentary
participation. The consequence is an overall decrease of parliamentary control
over the legislative process that is seen as a democratic deficit undermining the
legitimacy of the Union and the powers exercised therein.
There are two underlying fears in connection with the democratic deficit.
The first is that government officials who are not directly accountable may be
captured more easily by interest groups and thus prove less responsive to the
general interests of the people. Here the democratic problem is that of
accountability. The second fear is that a small minority in a state could be overrepresented in the intergovernmental process and thus be able to impose its
preferences even in the face of an overwhelming European majority. Here, the
argument turns into another form of democratic discourse in Europe—one
that focuses on the nonmajoritarian character of decision making. The democratic problem, in this case, is an issue of representation linked to nonmajoritarian decision making. The nonmajoritarian label is also applied increasingly
in yet another discourse, concerning the lack of appropriate proportional
representation. Discussions at Nice were emblematic of the growth of a democratic rhetoric on the need to organize representation in Europe based on equal
representation among citizens, not among states. From this flows the demand
for greater representation in proportion to the population of each state.25
Europeans in a small state should not have more power than other Europeans
who happen to be citizens of a larger one. The argument is that representation
in Europe should move closer to the principle of “one person, one vote.”
All these accounts of the democratic deficit argue in favour of bringing
the Union closer to traditional forms of democratic deliberation. However,
there are profound differences of opinion on how to democratize the Union.
One solution argues for adopting a democratic model such as that of the state.
Another would claim that the democratic legitimacy of the Union can only be
provided through the states—that it is through national democracies that the
EU could be brought back under democratic control. The choice of democratic
25
Whether the second statement follows from the first is very doubtful and will be discussed below.
M. P. Maduro
345
model would thus depend on the polity—Europe or the states—chosen as the
locus of democracy. There are proposals that argue in favour of reinforcing the
powers of the European Parliament, while others plead for enhanced control
through national parliaments. Whether or not such solutions are seen as
enhancing democracy in the European Union depends on one’s previous
conceptions of the polity and how individual interests can and ought to be
aggregated in Europe, how participation should take place (through the states
or the Union), and what is the appropriate political community in which to
gauge the will of the majority.
The question of choice of polity also arises when one attempts to define the
goals of the EU and the policies that they entail. Whatever limits European
integration has imposed on the performance of traditional functions at the
national level, it has not envisaged the EU taking over those functions. The
Union, as yet, neither fulfils the conditions nor has the capacity to perform
those functions. As a consequence, the process of European integration is seen
not simply as challenging the capacity of states in this area but, more broadly,
as challenging those functions of governance themselves. For some, the
process of European integration threatens the very conception of the welfare
state that has supported the subsistence of national political communities and
moulded our conception of public power.26 Others, notably Jurgen Habermas,
perceive that challenge as resulting from broader global processes and so
conceive of the European Union as an opportunity to protect the values of the
welfare state.27 For that to come about, the Union would have to adopt a social
contract clarifying the forms of civic solidarity on which the European polity
should be based. Again, the path to be followed depends on our conception of
the European polity.
The polity question is also fed by the increased redistributive consequences
of EU policies. Even if the Union were to continue primarily as a regulatory
entity, its regulatory choices often entail profound redistributive effects at the
state level. These effects occur independently of the budget constraints of the
Union and even when EU policies do not directly allocate income among EU
citizens.28 Most often, they are evident in budgetary choices imposed on the
states as a consequence of EU rules.29 The redistributive impact of current
European policies and the claims for a just distribution of the gains arising
from economic integration have so far been addressed as state matters.
26
For a discussion of this problem see FRITZ SCHARPF, GOVERNING IN EUROPE. EFFECTIVE AND
DEMOCRATIC? (Oxford Univ. Press 1999).
27
JÜRGEN HABERMAS, THE POSTNATIONAL CONSTELLATION (Polity Press 2001).
28
Obvious examples of more directly redistributive impacts are posed by agricultural and fishing
quotas.
29
Compliance with EU environmental or health rules, for example, may require investing in certain public infrastructures at the expense of others. In this way, the EU affects the allocation of
resources within a state and shapes its redistributive choices.
346
A constitutional identity for Europe?
Economic integration is perceived as mainly about wealth maximization, while
redistribution takes place at the level of the state. Both the limited, directly
redistributive policies of the Union and the redistributive impact of other
policies is legitimated through bargaining, which is seen as occurring between
states and not between European citizens.
However, both the expansion of the EU’s scope of action and its institutional
changes are producing redistributive effects that can no longer be traced back
to any original agreement among the states or conceived of as part of an
ad hoc political bargain that might legitimize them through the appropriate
forms of compensation among states. Instead, the degree of majoritarian decision making, the scope of European policies, and the open and indeterminate
character of political action, require either an overall criterion of distributive
justice to legitimate those different policies and their redistributive effects or,
alternatively, an agreement on constitutional forms of deliberation to develop
such a criterion.
At the same time, the more direct relation established between European
citizens and the Union requires the development of criteria of distributive justice that are capable of justifying to those citizens the differentiated impact of
EU policies upon them. In popular terms, the questions will increasingly be
along the lines of: Why should poor citizens of state A be made to pay for both
poor and rich citizens of state B? Why should some citizens of state A receive
less than similarly situated citizens in state B, just because state A agreed
to allow this in exchange for a compensation that benefits a different group of
state A’s citizens? Can redistribution—in the form of directly redistributive
policies or redistributive impacts—in the Union continue to be a function
of national borders rather than of the individual status of European
citizens? Again, the answer to these questions is closely linked to the broader
polity question.
In light of the above questions, it is easy to see how the incremental nature
of the normative and political authority claimed by the Union can also lead to
a claim for constitutional authority. In other words, if one can legitimate a
new European polity, and this polity acquires both normative authority
(supremacy and direct effect) and political authority (the autonomous determination of its scope of action), a new question emerges regarding the potential
conflicts of ultimate authority between national polities and the European
polity. This question is reflected in the increased fears of a constitutional
conflict between national legal orders, mainly national constitutions, and the
EU legal order. Or, as we have come to know it in the European context,
the kompetenz/kompetenz question.30 In reality this is a problem about the
authority of the EU and how such authority is to be coordinated and
reconciled with the authority of national polities.
30
See also Mattias Kumm & Victor Ferreres Comella, The primacy clause of the constitutional treaty and
the future of constitutional conflict in the European Union, 3 INT’L J. CON. L. (I•CON) 473, 475 (2005).
M. P. Maduro
347
It seems that clarification of the nature of EU authority would require choosing between two very different constitutional options: either a strict limitation
of its competences, denying constitutional authority to the Union by limiting its
political authority while accepting its normative authority,31 or else a clear
definition of its constitutional authority with regard to the member states. In
the second instance, the Union should assume a form of pouvoir constituant.
Only this would clarify the extent of its constitutional authority and solve the
problems created by the normative and political authority it already holds.
In my view, however, it is consonant with the nature of European constitutionalism itself to leave the question of final authority open.32 From the
previous analysis one can appreciate how difficult it is to establish the polity
legitimacy of the European Union and also how badly such legitimacy is
needed in order to respond to many of the current challenges faced by the
Union. Certain majoritarian developments, for example, presuppose a form of
democracy that requires a particular form of polity. There are certain policies,
too, whose redistributive consequences may only be fully legitimated by a criterion of distributive justice that has been agreed to within a polity. This would
require the project of European integration to secure the delicate balance
between the authority of national and European polities. It is in this context
that the concept of constitutional pluralism appears particularly appropriate
for describing the emerging relationship among a plurality of constitutional
forums.33 But this constitutional pluralism must not be simply about regulating
the question of ultimate authority between national and EU constitutions. It
must be based on a particular understanding both of the normative value to be
derived from this plurality of constitutional sources and of the relationship
between EU and national political communities.34
The extent and difficulty of the constitutionalism challenge faced by the
Union derives from the fact that, although European constitutionalism must
have polity-building capacity, it must, at the same time, preserve polity
diversity. In the first place, the ideal of political pluralism inherent in European
constitutionalism extends to the question of the polity itself. In the second
place, the maintenance of polity diversity—in the context of an emerging
polity—creates a tension between the constitutionalism required by the latter
and the intergovernmentalism imposed by the former. So far, this tension has
been solved by keeping constitutionalism outside the deliberative process.
31
In other words, the supremacy of EU norms would remain, but would operate within a limited
and very clearly defined realm of competences. The most ambitious version would deny even
normative authority by subordinating the EU constitution to national constitutional norms.
32
See Maduro, supra note 19.
33
See Neil Walker, The Idea of Constitutional Pluralism, 65 MOD. L. REV. 317 (2002).
34
See MADURO, supra note 16. See also Miguel P. Maduro, Europe and the Constitution: what if this is
as good as it gets?, in EUROPEAN CONSTITUTIONALISM BEYOND THE STATE (Joseph Weiler & Marlene Wind
eds., Cambridge Univ. Press 2003).
348
A constitutional identity for Europe?
The policies of the EU, while limited and constrained by constitutionalism, are
still largely decided under the logic of intergovernmentalism. The extent to
which this limited constitutionalism is compatible with the polity and regime
developments of the Union is unclear.
5. The constitutional treaty and the nature of
European political and normative authority
How does the new constitution affect the political and normative authority of
the Union? Most notably, the constitution formalizes (and, therefore, reinforces) EU normative authority by introducing an explicit primacy clause in
its article I-6. This express recognition of the normative supremacy of EU
rules should not be seen, however, as an assumption of European constitutional authority over national constitutions. The supremacy of EU norms
over national norms, including national constitutional norms is one thing,
and it is essential to guarantee the uniform and effective application of EU
law by not making its validity subject to different national rules. However,
arrogating constitutional authority over national constitutions to the EU, in
the sense that national constitutional authority would be delegated and
limited by that of the Union, is quite another. That would shift the locus of
sovereignty to the EU—something that certainly does not appear to be
enshrined in the character of this document. This conclusion is supported by
the fact that the primacy of EU rules is subject to a requirement of respect for
the national constitutional identity of the states (article I-5(1)) and to the limits imposed by the “competences conferred on the Union” (article I-6). In other
words, what authorizes the primacy of EU norms over national norms, including constitutional norms, is the previous systemic compatibility between the
EU and national constitutions. This is guaranteed, at the EU level, by the
respect for national constitutional identities imposed by the constitution itself
and, at the national level, by the ratification processes of the constitutional
treaty, which will operate in accordance with national constitutional provisions.
It is in the context of the political authority of the Union that the constitutional treaty effects more innovations. Again, there is no change of paradigm
but a reinforcement of previous trends. There is no remarkable increase in
the Union’s competences; in some respects they can even be said to have been
limited.35 However, in the area of institutional reform, there are developments
that affect the political authority of the Union. In particular, there are reforms
that reinforce certain majoritarian elements of the EU political system. By this,
35
I develop a broader analysis of the competences issue in Miguel P. Maduro, How Constitutional
Can the European Union Be? The Tension Between Intergovernmentalism and Constitutionalism
in the European Union, Jean Monnet Working Paper May No. 5/04. Available at http://www.
jeanmonnetprogram.org/papers/04/040501-18.html.
349
M. P. Maduro
I mean that the political authority of the Union is increasingly defined by
reference to a European majority.
In this respect, the convention’s agenda embraced four main goals: first,
greater transparency and simplification; second, stronger democratic legitimacy; third, effectiveness and operability; fourth, promotion of political leadership. To some extent, these goals reflected the old normative problems of the
Union, made more visible and acute by the EU’s enlargement. Addressing them
entailed a reorganization of the balance of power. One of the problems was that
the move toward a more effective, operational, and stronger European Union
would not be compatible with the traditional institutional balance, which had
diffused power to such an extent that it affected the operationality and effectiveness of the Union and the degree of political leadership we could expect from it.
One of the aims of the current reforms, for example, is the development of
a more effective executive power through various means, including: (a) having
a President of the European Council; (b) reinforcing the Council’s authority
and the Commission’s accountability to the Parliament; and (c) extending the
use of majority decision making, albeit not as much as some would have liked.
The issue of proportional representation in the Council, already reinforced in
the Nice treaty, has continued to be a key element in many of the recent
debates and was reflected in the Convention president’s emphasis on the need
for legitimacy to be assessed in terms of the support of the majority of Europe’s
people and not a majority of its states. Proportional representation will be further reinforced by the extension of the co-decision procedure, especially since
the Parliament is thought to be closer to such a principle of representation.
The move toward a majoritarian system may be unavoidable in a Union
entrusted with a broad array of indeterminate and flexible competences, with
an increased number of participants in its decision-making processes. Even
if we leave behind the assumption that the acquiescence of all participants
(unanimity) will be the normative ideal for collective action in the EU, we must
recognize, as Buchanan and Tullock have taught us,36 that with twenty-five
member states, the costs of decision will be so high as to justify the adoption of
majority decision making as a second best. Once we do that, the question
becomes one of what criteria to adopt in determining the relative power of the
various participants; this, in turn, will require elements of proportional representation to strike a balance between equality among states and equality
among citizens. We will then also have to define appropriate mechanisms of
separation of powers and political accountability, which will require a stronger
distinction between the executive and the legislative, allowing stronger political leadership but making it subject, at the same time, to more intense democratic scrutiny. The development of a majoritarian system is inextricably linked
to the scope of the political ambitions that the European Union has assumed
36
JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS
CONSTITUTIONAL DEMOCRACY (Univ. of Michigan 1965).
OF
CONSENT: LOGICAL FOUNDATIONS
OF
350
A constitutional identity for Europe?
and the increased costs of decision making due to the enlargement process. In
this light, the move toward majoritarian decision making is, perhaps, more the
consequence of a pragmatic choice, one mandated by the need to function
with so many member states, than a normative choice—a preference for
Europe as the relevant political community for democracy.
In these circumstances, it becomes crucial to discuss what kind of requirements a majoritarian system must fulfil and how they are to be guaranteed by
the European Union. The move toward a majoritarian system, in the context of
a polity of increased open and indeterminate goals, entails, first of all, a move
away from what—adopting the categories of Hirschman37—we could define
as a system of allegiance based on voice and toward a system based on loyalty.
Put more precisely, this means separating from a form of allegiance secured by
the high degree of relative power of all states in the decision-making process
and by the linkage of issues between different EU policy decisions that compensate different states and gravitating toward a system where citizens will feel
bound even by the decisions of a majority to which they do not belong. One of
the first priorities of the current constitutional reform, therefore, should be to
establish the conditions that will inspire the political loyalty of all European
citizens to the majoritarian decisions of the Union. This requires polity legitimacy, which, in turn, requires the development of the polity-building elements
associated with constitutionalism.
Next, any majoritarian system must establish a framework guaranteeing
the universality of its policies and mechanisms of deliberation. These are the
conditions of constitutionalism as a form of deliberation. This requires, in the
first place, the protection of minorities and, above all, the prevention of permanent and insulated minorities (net losers). Instrumental to achievement of
this goal is the promotion of mobility between the majority and minorities,
guaranteeing that those in the minority one day may be part of a majority the
next. Important, too, is the creation of a deliberative system that will tend to
diffuse voting patterns rather than promoting the aggregation of rigid majorities or the creation of pivotal players. This would help guarantee against
zero-sum decisions, since those in a majority would know that they could just
as easily, in another instance, be part of the minority and would have, therefore, an incentive to create mechanisms of compensation for the losing faction.
Constitutionalism as a form of deliberation also requires that majority decisions
be universalizable in their translation into policy making and rules. Policies are
framed under criteria of universal application, which ensures that they are
applicable to all citizens fulfilling the same requirements. In this way, it
becomes less likely that a particular group will absorb unduly the benefits or
costs of a certain policy. This is also why rules are subject to requirements of
generality and abstraction; they must be drafted in light of conditions that
37
ALBERT HIRSCHMAN, EXIT, VOICE AND LOYALTY: RESPONSES
STATES (Harvard Univ. Press 1970).
TO
DECLINE
IN
FIRMS, ORGANIZATIONS
AND
M. P. Maduro
351
could potentially apply to anyone and not be susceptible to bias toward any
particular interest. Rules provide a kind of ex post consequence that obliges
decision makers to internalize a sort of veil of ignorance. It is easy, in this
instance, to see how the logic of constitutionalism tends to conflict with EU
patterns of intergovernmental deliberation.
The increasingly majoritarian character of EU policies expands the political
authority of the EU and, therefore, increases the tension between constitutionalism and intergovernmentalism. This form of political authority requires
securing political loyalty and changing the character of political deliberation.
In other words, it will require the injection of European constitutionalism into
forms of political deliberation in the Union and into the promotion of polity
building. On the other hand, the focus on European constitutionalism should
not challenge the constitutional pluralism that underlies the European
relationship with national constitutionalism and political communities.
The challenge of the future constitution will be to expand the authority of
constitutionalism without assuming constitutional authority. Whether it will
be able to do so is, to a large extent, an open question.
6. The new constitutional treaty: Constitutional
authority and the authority of constitutionalism
For some, the constitutional challenges described above demand a clear definition of the ethos and telos of European integration that must be expressed in a
new and fully subscribed political contract. In this respect, the current debate
on the future of Europe has represented a departure from “constitutional
business as usual” in Europe. It was presented as Europe’s constitutional
moment.38 This vision was clearly embraced by some members of the
Convention and, in particular, its president.39 It is difficult to argue that such a
constitutional moment actually occurred but a conclusive analysis can only be
made following the national processes of ratification and referenda. The political capital invested in addressing these challenges and the importance and
public relevance they are acquiring may prove to operate in very different
ways—ranging from the one extreme of “killing” the constitution and creating
a constitutional crisis (even challenging the current constitutional acquis)40
38
For an analysis see Ingolf Pernice, The Draft Constitution of the European Union: A Constitutional
Treaty at a Constitutional Moment, in A CONSTITUTION FOR THE EUROPEAN UNION: FIRST COMMENTS ON THE
2003-DRAFT OF THE EUROPEAN CONVENTION (Ingolf Pernice & Miguel P. Maduro eds., Nomos 2004).
Neil Walker, After the Constitutional Moment, in A CONSTITUTION FOR THE EUROPEAN UNION: FIRST
COMMENTS ON THE 2003-DRAFT OF THE EUROPEAN CONVENTION, supra.
39
For a history of the Convention process see PETER NORMAN, THE ACCIDENTAL CONSTITUTION—THE
STORY OF THE EUROPEAN CONVENTION (Gazelle 2003).
40
For different possible legal scenarios regarding ratification, see generally BRUNO DE WITTE, TEN
REFLECTIONS ON THE CONSTITUTIONAL TREATY FOR EUROPE (RSCAS and Academy of European Law
352
A constitutional identity for Europe?
to the other extreme of creating a true constitutional moment for the
Union.41
In any event, the choice of the legal form of a treaty, and the subjection of
the text, for the most part, to the traditional mechanisms of treaty ratification
make clear that we are not confronting a constitution in the classic sense.42 If
the current process had abandoned the requirement of unanimous ratification
by the states, this would have signified the recognition of an independent
constitutional authority vested in the Union. In other words, the Union would
not simply have been accorded normative authority over national legal orders
but that authority would have been recognized as the result of a constitutional
authority independent of the states or peoples of Europe. The Union’s future
would be decided by a single European polity and not by an agreement among
all national polities. Whether or not to have a European constitution would
then be a decision of the European people, not the peoples of Europe. For some,
this exercise of pouvoir constituant at the European level was what was needed
to legitimate the European Union. Viewed from this perspective, Europe does
not lack a people so much as it lacks a genuine exercise of constitutional power
by that people. But it is also possible to argue that any such European constitutional exercise is illegitimate precisely because it implies a non-existent
European demos.
The new constitutional treaty did not produce a true pouvoir constituant.
Instead, the constitutional authority of the Union will continue to be a mix of
constitutional authority granted by national polities complemented by the
incremental and reflexive constitutionalism that flows from the deliberative
mechanisms set up by the constitution, upon which the European polity is
being built. In this respect, the constitutional treaty appears to respect the
canons of constitutional pluralism upon which the evolution of the Union has
been based.
The fact that the Union does not possess a pouvoir constituant should not be
confused with a lack of normative authority. As stated above, EU norms can
and must have primacy over national norms, but that does not mean that the
Union’s normative authority amounts to the authority to create a constitution
independent of the national political communities and impose it upon them.
2003); Jo Shaw, What Happens If the Constitutional Treaty Is Not Ratified? in THE TREATY ON A
CONSTITUTION FOR EUROPE: PERSPECTIVES AFTER THE IGC (Ingolf Pernice & Jiri Zemanek eds., Nomos
forthcoming 2005).
41
This possibility is discussed by Carlos Closa Montero, La Ratificación de la Constitución de la UE:
Un campo de minas [The ratification of the EU constitution: A minefield], Real Instituto Elcano, ARI
N120/2004.
42
See Marta Cartabia, ‘Ispirata Alla Volontà Dei Cittadini e Degli Stati D’Europa’: Considerazioni Sulla
Ratifica Del Trattato Costituzionale Europeo [Inspired by the will of the citizens and states of Europe:
Considerations on the ratification of the European constitutional treaty], QUADERNI COSTITUTIONAL (vol. 1)
(forthcoming 2005).
M. P. Maduro
353
Constitutional authority (in the sense of a pouvoir constituant) is still,
ultimately, in the hands of the national political communities43 but, once it is
jointly exercised at the European level, it embodies a European polity that is
granted both normative and political authority.
This is a treaty that establishes a European constitution—it formally adopts
constitutionalism as the form of power by which the European Union is to be governed. It is not an expression of a constitutional authority that reigns supreme
over the constitutional authority of the states; but it expresses a commitment to
constitutionalism as the form of power in the EU and conveys the polity-building
character of the project of European integration. The constitutional nature of the
constitutional treaty must be assessed in light of these two different dimensions:
one has to do with the constitutional authority of the document and the other
with the degree to which it adopts constitutionalism as the form of power.
The relevant question is the extent to which the new European constitution
will affect the limited form of European constitutionalism that already existed, as
described above. In this context, the nature of the constitutionalism flowing from
the new European constitution is largely ambiguous, reflecting an agreement to
use the language of constitutionalism in European integration without agreeing
on the concept of constitutionalism underlying that language. For some, the new
constitution embodies the expansion of the polity ambitions of the Union and,
consequently, should be treated as a fully fledged constitution, serving as an
instrument for the further integration of Europe. For others, the adoption of a formal
constitution should have no added value other than to guarantee more explicitly
that the Union will not threaten the constitutional values of the states, thus placing a constitutional limit on the process of European integration. Underlying
these different visions are different perceptions of the role of constitutionalism in
the EU and of its relationship with intergovernmentalism.
Either way, the constitution will change the dynamics of constitutionalism
in the European Union. Much will depend on the brand of constitutionalism
used to “read” the constitution. Nonetheless, the adoption of the constitution
in itself already changes the nature of European constitutionalism. I identify
four immediate effects, independent of what will become the dominant constitutional discourse.
The first is a twofold legitimating effect. There is an ex post legitimating
effect with regard to the normative and political authority assumed by the EU
and the constitutionalism developed to sustain it.44 By clarifying and reconciling
43
This is confirmed by the insertion in the constitutional treaty of a provision allowing for a state
to withdraw from the Union.
44
Loïc Azoulai, La Constitution et l’intégration. Les deux sources de l’Union européenne en formation
[Constitution and integration: Forming the two sources of the European Union], 2003 REVUE FRAMÇAISE
DE DROIT ADMINISTRATIF 869. José Areilza, La Constitución de la Unión Europea: El Regreso a La
Comunidad Europea [The constitution of the European Union: The return of the European Community],
Instituto de Empresa, Working Paper Derecho, WPED04-1, 2004 (arguing a similar view of the
constitution, as rediscovering the European Communities).
354
A constitutional identity for Europe?
the constitutional past, the constitution refocuses political discourse on the
future of the European polity and not on a direct challenge to its existence. But
there is a broader legitimating effect with regard to the future and to the
possible impact on the relationship between constitutionalism and intergovernmentalism. This effect has to do with a clearer differentiation between
“constitution making” and “normal politics” in the Union. The constitutional
treaty was based on a constitutional process that distanced itself from classic
intergovernmental treaty making. By virtue of the convention process and the
current broader and participatory process of ratifications, the constitutional
treaty sees its legitimacy reinforced by the fact that its form of deliberation can
be distinguished from the classic intergovernmentalism that has dominated
both the drafting of the treaties and the adoption of EU legislation.45 More
importantly, this clear differentiation between the constitutional and legislative
processes46 of the Union reinforces the authority of the constitutional norms
with regard to the ordinary legislative process and, in this way, may help legitimate a reinforced constitutional control over legislative intergovernmentalism.
The second effect of the constitution is a mobilizing one. It will generalize
the use of constitutionalism as the language of political and legal claims in the
European Union. Even if it had no other purpose than to codify and clarify
Europe’s constitutional principles, fundamental rights and political organization,
this would not be simply an exercise in tidying up. Important consequences will
follow from the political and legal discourses that will be generated by a clearer
exposition of the European constitution. The constitution might not change
much but it will no longer be implicit. It will be there for citizens to discuss and
engage with, and this, apart from its immediate legitimizing value, could have
important political and legal spillover benefits in the future.
The third constitutional effect is linked to the previous one and could be
defined as a discursive effect. A formal constitution will change and, at the
same time, depend on the constitutional discourse. The importance of a formal
constitution is, in this respect, twofold: first, the process of drafting and debating it helps to develop a European constitutional discourse that reaches from
the legal to the political arena; second, it will be the basis for an ongoing,
Europe-wide discourse that will sustain both a European public sphere and its
polity-building dynamics. Any political community needs an enduring, reflective, and public discourse on its political values. Constitutional texts provide
the basis for such a discourse. They provide a common platform of agreement
that allows for political conflicts to be cast as competing rational arguments
regarding the interpretation of shared values rather than as power conflicts.
Constitutions help to rationalize political conflicts and to transform conflicts of
values into conflicts of interpretation. This is particularly important in the EU,
45
See Maduro, supra note 35. See also Paul Magnette & Kalypso Nicolaidis, The European Convention:
Bargaining in the shadow of Rhetoric, WEST EUROPEAN POLITICS, Sept. 2004.
46
See ACKERMAN, supra note 18.
M. P. Maduro
355
where political pluralism manifests itself in a deep disagreement as to the
nature of the polity itself.47 In this context, the constitution must provide
the basis for the rationalization and mediation of political conflicts that
characterize successful political communities. This functionality will arise
from the role of the constitutional text in reconciling political pluralism
(different visions of Europe) with the viability of a European project developed
around a shared constitutional platform.
This discursive effect will be particularly important in the political arena.48
Europe’s constitutional discourse will no longer be the exclusive domain of the
law and lawyers. The Charter of Fundamental Rights, for example, will be
important both as a set of legal rights and as a political forum for continuous
discourse and deliberation on the polity’s identity and evolution of the Union.49
An additional question concerns the extent to which the formal adoption of
constitutionalism is reflected in the deliberative logic of the political process.
This formalization and politicization of the constitution do not necessarily
assign a lesser importance to the role of the ECJ in the context of European
constitutionalism. It is, rather, a matter of transforming the function and
character of that role. It is in this context that the fourth effect of the constitutional treaty arises; I would call it an hermeneutic effect. The adoption of
constitutionalism as the form of power for the EU signifies a clear preference
for constitutionalism as the appropriate hermeneutic framework for addressing the legal and political conflicts of the Union. This takes us back to the issue
of the extent and nature of constitutionalism in the EU. Does it extend to the
form of political deliberation and the conception of the polity? This is not without relevance to the basic questions of the relationship between constitutionalism and intergovernmentalism. The extent to which courts should defer to a
unanimous decision of the member states in the Council depends on whether
we conceive of the legitimacy of the deliberative process as ultimately intergovernmental or constitutional. With the former, legitimacy derives from
intergovernmentalism when, in each case, it is left for the individual state to
balance the interests of its nationals. In this milieu, the unanimous decision
carries a particularly legitimating force. With the latter, the legitimacy
of deliberation stems from constitutionalism when the direct political
link between the Union and its citizens takes precedence over the Union’s
linkage with the state, and when what counts is how the decision impacts on
European citizens, generally, independently of the agreements among their
respective states.
47
Therefore the importance of the constitution, as highlighted above, lies in its preserving the
underlying constitutional pluralism of the Union.
48
49
See also Azoulai, supra note 44, at 870.
Miguel P. Maduro, The Double Constitutional Life of the Charter of Fundamental Rights, in THE
CHARTERING OF EUROPE: THE EUROPEAN CHARTER OF FUNDAMENTAL RIGHTS AND ITS CONSTITUTIONAL
IMPLICATIONS (Erik O. Eriksen, John E. Fossum & Agustín J. Menéndez eds., Nomos 2003).
356
A constitutional identity for Europe?
As I have noted, the incremental nature of the normative and political
authority of the Union requires that its constitutional project fulfill two conditions: first, it must generate the right incentives for European citizens to
embark on such a polity-building project; second, it must provide an adequate
deliberative framework enabling citizens to accept as legitimate the results of
the project. In other words, it must secure the political loyalty necessary to
the subsistence of a political community, particularly one of a majoritarian
character. And it must guarantee equal treatment for all members of that
political community—as citizens and not as members of insulated and discrete
groups. This is what I have described as the need for polity and deliberative
constitutionalism.
However, such developments must take place without the Union acquiring
a constitutional authority that would challenge national political communities
and the underlying constitutional pluralism of the project of European integration. Therein lies the difficulty. The nature of the political and normative
authority of the Union is difficult to reconcile with the low-intensity form of
constitutionalism that has so far dominated European constitutionalism.
To the dimension of constitutionalism as a limit to power must be added its
polity-expression and deliberative dimensions. But this must be done while
allowing for divergent constitutional visions of the European Union and
without challenging the constitutional authority’s reliance on national political
communities. The constitution expands the authority of European constitutionalism. But what kind of constitutionalism? That is an open question. Until
we know what we mean by constitutionalism in the European Union, we will
not truly know what the new European constitution will mean.