|
|
|
|
European Affairs
European Integration
An EU Constitutional Twist: No Representation Without Taxation?
By Ludger Kühnhardt
When the Convention on the Future of Europe started work in February 2002, a skepticalmood prevailed and expectations were low. Little more than a year later, the Europeanequivalent of the U.S. Constitutional Convention in Philadelphia in 1787 is gettingcredit for the substantial amount of work it has accomplished. The European Conventionhas already presented the first concrete elements of a European Constitution, andshown its worth as an innovative instrument of EU institutional reform.
Whatever compromises the Convention may ultimately reach, and whatever its shortcomings,the path toward a European Constitution has never been as open as it is today.Even though the repercussions of the war in Iraq have caused some delays, thereare still hopes that by the end of 2003, the work of the Convention – andthe follow-up work by an Intergovernmental Conference – will be done. Theratification process will follow in 2004. With the Convention still in the midstof its work, America’s constitutional experience in the late 18th centuryoffers some instructive indications as to where the current European process maybe heading.
The most obvious parallel is the fact that the American constitution followedthe independence of the United States, just as the move to develop a Europeanconstitution is following the creation of the European Union. The American authorJohn Ellis, in his fine book The Founding Brothers, describes the enactment ofthe American constitution as the second founding of the United States.
Whether a European Constitution will have the same impact remains to be seen.But the very establishment of the European Constitutional Convention can justifiablybe called a success in comparison with the Union’s futile and increasinglybureaucratic efforts to reform its institutions through obscure IntergovernmentalConferences in past years. The Convention, which counts representatives of allthe relevant EU institutions among its 105 members, together with participantsfrom the EU candidate countries, has acquired considerable momentum.
In the process, the debate over Europe’s constitutional identity has becomemarkedly more political and more transparent. The Constitutional Convention ispushing the discussion out of the academic world of constitutional theory intothe glare of the public political marketplace. The outcome of the Convention willbecome a reference point for further reflection on what might be called a European“constitutional patriotism,” or the fostering of allegiance to a moreunited Europe through constitutional advances.
The drawing up of a European Charter of Basic Human Rights, one of the few successesof the EU summit meeting in Nice in December 2000, provided a first indicationthat progress could he made in this direction. While the American Bill of Rightsfollowed the ratification of the U.S. Constitution, the European Union did it theother way around. The Human Rights Charter, the first document to be prepared bya European Convention, has yet to be incorporated into the EU treaty system andacquire the force of law.
Once this is done, however, the notion of European identity will acquire a stronglegal input, as is the case with the implementation of basic rights in the UnitedStates. The rule of law may become more important than intellectual purple prosein defining European rights and obligations, and thus a European identity.
This will have implications for the future role of the European Court of Justice,and, more generally speaking, for the whole question of the primacy of EU lawover national legislation. As in the past, the European Court of Justice willserve as an engine of further European integration through its interpretationof EU law. Resistance will grow in member states, particularly among lawyers,judges and, above all, law professors, who are still primarily trained in thetraditions of national law and all too often dislike the idea of further transfersof legal sovereignty to the central EU institutions. With the incorporation ofthe Human Rights Charter into the Constitution, however, this will become inevitable.
At the core of European constitution building is the issue of “limited powers,”to use the American notion of what Europeans call subsidiarity, a term that hasits origins in Catholic social doctrine. Subsidiarity is the principle that EUdecisions should be taken at the lowest appropriate level – whether national,regional or local – and that only those requiring action at EU level shouldbe taken in the Union’s central institutions. The American equivalent isthe Tenth Amendment, which states that “the powers not delegated to theUnited States by the Constitution, nor prohibited by it to the States, are reservedto the States respectively, or to the people.”
As we all know, the evolution of American federalism has been very lively overthe past 150 years. In spite of the limits on federal authority contained in theTenth Amendment, the originally loose links between the States and the federalgovernment have in reality developed toward “national federalism,”meaning that the concept of the nation has become a federal one.
Whether the European Union will follow suit remains to be seen. As things standtoday, however, the Constitutional Convention might in fact propose both “limitedpowers” for the European Union in general and, at the same time, more andnew powers in specific, crucial fields such as economic governance, justice andhome affairs, and foreign and security policy.
The presentation of the first 16 articles of the constitution by the Convention’sPresidium, or high-level steering group, in February 2003 indicates the generaldirection. These articles suggest that EU legislation should fall into three differentcategories. In the first case, the institutions of the European Union would haveexclusive jurisdiction; in the second, authority would be shared between the EuropeanUnion and the member states, and in the third, the competent bodies would be national,regional or local authorities.
The national parliaments of EU member states are asking for stronger representationin the legislative process via an “early warning system” that wouldmonitor the impact of proposed EU laws on national parliamentary authority andon the political mandates that national parliamentarians derive from voters. Theidea is to make the notorious notion of “subsidiarity” more palatableand concrete.
The biggest shortcoming of the current process is that the Convention has no mandateto include fiscal provisions in the proposed constitution. It is worth recallingthat the American constitution also originally lacked fiscal provisions. But theissue of fiscal federalism and arrangements for resource allocation will ultimatelydefine the fate of any European constitution. These issues are looming increasinglylarge in the discussion of Europe’s future constitutional division of powers.
In fact, questions of budgeting and of fiscal accountability are at the core ofthe debate over the legitimacy of the EU institutions. However much the role ofthe European Parliament, and the idea of transparent, parliamentary democracy,might be strengthened through an increase in the use of qualified majority votingin the adoption of EU laws, the core problem will remain “representationwithout taxation.” Whereas the American colonies rebelled partly for theopposite reason – they were being taxed by a body (the Parliament in London)in which they were not represented – European citizens are represented ina Parliament that does not have the power of taxation.
Whether or not a European tax will ultimately be adopted, it is in the murky watersof fiscal accountability and transparency that the constitutional debate will continuebeyond the current work of the Constitutional Convention. This, the most importantunresolved problem of EU integration, ensures that amendments will be necessaryin future years regardless of the outcome of the current Convention. It has alreadybeen proposed that the Convention should not be a one-off event, but should betransformed into a permanent mechanism for amending the proposed European Constitution,perhaps convening every five years or so.
Another important and controversial proposal is the suggestion that the Constitutionshould include an “exit clause,” which would allow member states towithdraw from the Union if they no longer supported its plans for closer unification.Given that the United States fought a bitter and bloody civil war to stop statesseceding from the Union, the American precedent points to the explosive natureof this proposal.
Advocates of the “exit clause” say it would increase the legitimacyof the European Union by demonstrating that membership was voluntary. Opponentsargue it would open a Pandora’s Box in which member states would be constantlythreatening to secede if they did not get their way, and the issue of EU membershipwould, at least in some countries, be confirmed as a permanent and potentiallydestructive political issue. Any withdrawing state would also have to engage incomplicated and almost certainly difficult negotiations to preserve its tradingand economic links with the remaining members.
Another controversial issue is whether the European Union should be endowed witha legal personality, a development that looks likely since a consensus in favorhas been established in the Convention. This would enable the European Union inthe future to become much more active in matters of international law, joininginternational institutions and signing treaties on behalf of all its member states.
The modern European equivalents of America’s 18th century anti-Federalistsare resisting such a move. Those who favor further integration, as did the AmericanFederalists, are pleased that the notion has made headway among Convention members.In 18th century America, of course, the Federalists won the day by winning ratificationof the new constitution.
Agreement on the U.S. Constitution in Philadelphia was finally made possible bya “great compromise” that struck a balance between big and small statesin the composition of the Senate and the House of Representatives. The European“great compromise” will have to be between inter-governmentalistsand supra-nationalists over the vexed question of EU leadership.
Inter-governmentalists (the modern heirs of the American anti-Federalists) wantleadership to be exercised by the European Council, the forum in which nationalleaders represent their own governments. Supra-nationalists (the heirs of theFederalists) want more power for the European Commission and the European Parliament,in which national sovereignty is pooled in the overall interests of the Union.
In early 2003, the French and the German governments proposed two presidencieswith enhanced powers. The President of the Commission would be elected by theEuropean Parliament, instead of, as now, nominated by government leaders; thePresident of the European Council would be elected by heads of government andserve for several years. The Council Presidency currently rotates between themember states in alphabetical order every six months.
The Franco-German proposal represents a compromise between the inter-govermentalistleanings of the French government, which wanted a stronger President of the Council,and the supra-nationalist views of the German government, which wanted more democraticlegitimacy, and thus political authority, for the President of the Commission.The solution was simply to grant each government its wish. The plan, however,has run into opposition from other member states and from the European Parliament.
The mandate of a stronger Council President is of particular importance and controversy.Critics argue that a long-term Council President would prolong the Union’sso-called democratic deficit, given that voters would have no direct say in whoshould hold the office. At the same time, a Council President without strong authorityand viable bureaucratic support would find it difficult to function effectivelyas the prime spokesperson for Europe in world affairs – one of the mainroles he or she would be expected to fulfill.
The Franco-German plan would also fail to resolve current tensions between theCouncil and the Commission over which institution should take the lead in foreignaffairs at Ministerial level. At the moment, that role is shared awkwardly betweenthe President of the Commission, the Council’s High Representative for Foreignand Security Affairs (currently Javier Solana) and the External Affairs Commissioner(Chris Patten).
There is a growing consensus that this particular dilemma should be solved bymerging Mr. Solana’s and Mr. Patten’s jobs and appointing a singleEuropean Foreign Minister. But if the roles of both Presidents were simultaneouslystrengthened, the institutional conflict would simply be moved up to a higher level.
Nevertheless, a variant of the Franco-German proposal might be accepted as Europe’s“great compromise.” An elected Commission President could be matchedby a longer-term Council President with a specific mandate covering a limited numberof policy areas. Such a solution might be welcomed by the United States, whichis not particularly pleased at having to deal with a new Council President everysix months.
It must be doubted, however, whether such a compromise would truly reflect theinterests of EU citizens or advance the concept of a common European identity.On the one hand, it is probably too early for most Europeans to accept a realPresident of the European Union, in the same way that Americans accept Presidentialauthority. On the other hand, if the European Union is to have a President, thatPresident must, in the end, be a real one. Ultimately, only a directly electedPresident – or a President with a double hat, presiding over the Commissionand the Council simultaneously – could legitimately claim to represent theUnion’s citizens with the same authority as an American President.
A clear majority in the Constitutional Convention favors the election of the nextCommission President by the European Parliament in late 2004. The choice wouldreflect the political alignment that will emerge from Europe-wide elections tothe Parliament that are to be held that summer, the first to include the ten newmember countries that are due to join the Union in May 2004.
Although the European Union remains a construction site, it is fascinating tosee how fast the idea of a European constitution has gained consensus –even among British members of the Constitutional Convention. Britain, which doesnot have a written constitution, has also traditionally been among the most reluctantsupporters of further political integration. But it is not inappropriate thatBritain should play a role in forging a European constitution. After all, althoughthe U.S. constitution came into being as the result of the break with Britain,America’s Founding Fathers were strongly influenced by English ideas.
Ludger Kühnhardt is Director of the Center for European Integration Studies at the University of Bonn. His most recent publication, Constituting Europe: Identity, institution-building and the search for a global role, was published by Nomos Publishing House of Baden-Baden, Germany, in early 2003. In 2002, he was a Public Policy Scholar at the Woodrow Wilson International Center for Scholars in Washington, D.C.