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The International Spectator
Volume XXXIII No. 1 (January-March 1998)
After Amsterdam, the Constitutional Identity of the European Union
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By Andrea Manzella
The European Union, Nation States, Citizenship: the Necessary Equilibrium
The Treaty of Amsterdam (2 October 1997) confirms that the construction of Europe embraces three constitutional trends. The first involves a progressive strengthening of the institutions of the Union, the second, a strengthening of the European projection of the member states, and the third, a strengthening of the sphere of individual rights which citizens of the Union enjoy and which derive from European citizenship as a complement to their national citizenship.
Many opinions have, however, also been expressed to the effect that these trends are incompatible. This is the opinion, for example, of those who imagine that the constitutional format of the Union will be shaped by the progressive emergence of a single entity, following the classic model of statehood. Or of those who, starting out from an opposite standpoint, feel that enough sovereignty has been devolved to the Union and that the states should not relinquish any more. But it is also the opinion of those who are convinced that citizenship, as a condition for civic and individual identity, cannot be separated from the requisites of the nation state.
Thus, while we are witnessing the growth of a matrix of rules, institutions and customs related to the Union, its member states and their “common” citizens—a development that is aimed at building a constitutional body with sovereign powers limited by their participation and by the sphere of citizenship, there is a perception, despite differing aspirations (such as a return to national statehood or a leap to supranational statehood) that the Union’s current configuration and its future are incoherent, contradictory and, therefore, precarious.
Thus, critiques coming from opposite sides intersect. The fact that the Union does not correspond to any of the models inherent in the experience of the constitutional state is taken as the cause of all of its inefficiencies (even those that can be found in the most orthodox state model). The fact that the nation states maintain reserves of sovereign power is considered proof of the failure of any kind of scheme aimed at reducing the members’ sphere of statehood and at the same time of the Union’s statalisation process. The fact that European citizenship does not correspond to a “European public space” is given as counterproof of the artificial and formal nature of that status (overlooking the changes in public opinion and perception that have taken place in Europe in the last decades).
It is obvious that these contributions can be very stimulating for a critical interpretation of the Community construction in its current conformation. But their partiality with respect to the institutional and political reality of the Union in its overall complexity is equally evident. Moreover, they are all based on a theory which views the Union’s institutional order as a variant of a state-like model and does not tolerate any deviations from that ideal. It is this bias which leads to the prediction of finis Europaeat each European Council; and, above all, to mistaking the need for adjustment of the Union’s decision-making process (which is a permanent exigency of any government body) with that of radical constitutional reform.
Yet, after the Treaty of Amsterdam and the Pact of Stability, on the eve of an enlargement fraught with concrete and exceedingly difficult problems, these biases and the abstract and ideological models underlying them seem to have little relevance for any serious prospect for reform. The latter, on the contrary, is increasingly bound to the strengthening of the European construction as it has historically arisen, with its three elements of supranational Union, nation states and citizenship. Then again, the dynamism of the process which continues to characterise the European construction makes it impossible to predict the final configuration of this combination of elements. But while no final conformation of the Union’s “structure-process” can be perceived, one stable factor can be deduced from the history of European integration and the unwavering legal-institutional direction it has taken: all three elements are equally essential; in the building of Europe, a supranational Union, the nation states and a complementary citizenship are all essential elements. The real institutional question is what would be the best equilibrium between them to make the Union efficient as a governing structure.
Thus, to tackle the problems of a European constitution, one has to start out by ascertaining the compatibility of these elements, not with the facile criticism that they are incompatible, repeated every six months while Europe “e pur si muove”.
The New Role of the Nation States
The institutional treaties which gave rise to the European legal order are different from international agreements. Indeed, they are “executive orders” of the constitutions of the states parties. The member states were and are able to enter into and develop them on the basis of specific clauses contained in their respective constitutions.
Sovereignty, the European Union’s power to command, is thus an attribute derived from the joint transfer by the member states of sovereign powers to a supranational entity. This then takes on a life and autonomy of its own with respect to the founding states and, vice versa, the constitutions of the latter undergo a profound change as a result of integration with the supranational entity. But two caveats must be kept in mind when assessing these constitutional changes.
The first is that everything is based on a pact, a foedus, that can be changed either with the withdrawal of an individual state (as acknowledged in the famous decision of the Constitutional Court of the Federal Republic of Germany of 12 October 1993) or with the suspension of the rights of a member state (foreseen by the Treaty of Amsterdam in case of serious and persistent breach of the principles on which the Union is founded). 1
The second is that the Union is not a body with general competencies, but one with competencies limited by the constituent treaties. The general role of the nation state is, therefore, ensured by the Union’s structural arrangement. Furthermore, the nation state is given a subsidiary role with regard to the competencies not attributed exclusively to the Union. 2
Thus, the nation state’s role in the Union’s institutional configuration is defined on a case-by-case basis: as the giver of primary legitimacy, as the holder of the governing powers not conferred upon the Union, as the performer—in a subsidiary way—of Community functions.
As can be seen, these roles are always marked by a high degree of interdependence with the role of the Union. There are two reasons for this: the first is the practical and conceptual unity of the functions of government, including, above all, those attributed to the Union in the framework of the economic, environmental and cultural interdependence characterising the global context. The second is the constitutional trade-off that occurs between the nation states and the Union, as the Union’s new kind of supranational power, conferred on it by the member states, is indispensable in legitimising the residual political power of the member states.
It can therefore be said that in the same way that the role of the nation state cannot be absorbed by the Union, the functions of the Union cannot be reabsorbed by the nations without upsetting the “new” internal equilibrium established inside them as a result of their membership in the Union.
This is obviously not the case for the division of material competencies between member states and the Union, which is, on the contrary, the object of continuous and complex integration processes. But it is absolutely valid as far as the division of functional competencies between the two levels of government is concerned. In other words, the nation state does not have any material competencies that cannot per se be transferred to the Union sphere. All attempts to distinguish a hard core of national competencies have been unconvincing and have, in the end, been rendered obsolete by the succession of treaties.
What really has been consolidated in the Union’s “structure-process” after the introduction in Maastricht and the specification in Amsterdam of the principles of subsidiarity and proportionality, is the division of functional competencies between the member states and the Union. The formal criteria of subsidiarity that identify the various levels of government can legitimately be substantiated by political motivations linked to the concepts of proximity to the governed, consensus, the need for identity.
In the dynamic system of multi-level government (from municipalities to the Union), the nation state is called upon to perform three fundamental functions: interconnection between the various levels of government, representation of national interests in the Union, gathering of domestic consensus for Union objectives
The function of interconnection derives from the specific institutional position of the nation state which participates in all levels of decision-making and is the only structure able to provide cohesion to the system. This is particularly valuable in that each European state is interested in dislocating power to the advantage of the territorial governments, creating considerable centrifugal tensions. Europe needs a network of regional and local governments as a backbone. But this need for the involvement of sub-state realities does not mean that the institutional dimension or the procedures for coordination of the nation states can be overlooked. Indeed, the expression “a Europe of regions”, which is in itself positive in underlining the ongoing drive towards proximity in Union governance (fostered by the Union), can be dangerously ambiguous. It could, in fact, if taken to the extreme, lead to disruption and a radical step backward with respect to even the original process of European integration, promoted and pursued by the member states in their capacity as complex historical and juridical actors.
The function of representing national interests goes beyond those aspects relating to the primary institutionalisation of nation states for the recognition and fulfilment of demands for security and development coming from local communities. The nation states’ decision to confer sovereign powers in order to enter into the Union and pursue its objectives is guaranteed by two precise constraints: a par condicio with other conferring states and the preservation of the nation’s historical identity and destiny. Maintaining these two conditions is the typical object of the nation’s function of representation in the Union, regardless of the empirical contents involved.
Basically, knowing that each positive or negative aspect of the behaviour of each of its members will have immediate repercussions on the entire constitutional circuit, the supranational organisation acts in two opposite ways. On the one hand, it tends to favour the greatest possible homogeneity in the behaviour of its components, in accordance with standards often set by the stronger members. On the other, it tends to create asymmetries, concentric circles, hard cores and perhaps even directoires inside the organisation—all formulas aimed at underlining some kind of differentiated integration of the member states. In this kind of dynamic, the national interest of each member state, especially if of medium size, acts as a limit. It is usually of a formal, procedural nature, but everyone knows the more subtle substance that underlies procedural issues in any kind of order; in this case, it is an interest in maintaining conditions of trans-national democracy in which the member states are guaranteed not only their identity but also their original condition of parity.
The function of gathering consensus for the objectives of the Union is carried out in member states by means of normal electoral mechanisms and national parliamentary procedures of control and guidance of the government’s actions in the Community sphere. The latter ensure an indirect legitimacy for the government of the Union, but they also allow the member states to take account of the need for greater consensus than that expressed by the grassroots communities—a consensus linked to the processes of regional and global interdependence, expressed, therefore, by larger communities that extend beyond national borders. For “nomad nations” like Italy and Spain, characterised by large emigrant communities outside of their national borders, this condition is an extremely important resource.
The role of the nation state is not, therefore, residual in the dynamics of the European construction. On the contrary, it is essential for the legitimation and effectiveness of Union policies. When set in these terms, the solution of the problem of sharing political sovereignty without dividing the member states is not a paradox.
Common Citizenship
The change in the role of the nation state in as much as it is a member of the Union has direct consequences on the concept of citizenship. Indeed, the institutional integration of a supranational order with national orders generates a dualism in the status of individuals, in that they simultaneously partake of both European and national citizenship.
This dualism is related to citizenship not only in the formal legal sense, as the sphere of rights and duties in the organisation of public power, but also to citizenship as a value, as a subjective domain of historical, cultural and political belonging.
The Treaties of Maastricht and Amsterdam describe the formal legal profile of this dual citizenship with sufficient clarity. To the “revolutionary” formula of the Treaty of Maastricht, which put an end to the state monopoly on citizenship: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union”, the Treaty of Amsterdam adds a significant detail: “Citizenship of the Union shall complement and not replace national citizenship.” 3
Probably, the intent of the negotiators was to close the gaps concerning a kind of “European statelessness” that had been opened up when the concept of citizenship was taken from the hands of the nation state. The normative result is however quite different. The introduction of the concept of “complementary”, which is quite different from “additional”, is tantamount to equating the nature or European citizenship with national citizenship and to declaring state citizenship as being “partial”: the latter must be integrated to achieve full status for the individual in the sphere of the subjective charges pertaining to relations between the individual and the Union.
As for the contents, Maastricht had already stated the aim of establishing Union citizenship in its Art. B: “strengthen the protection of the rights and interests of the nationals of its member states”. But Amsterdam inserted an initial paragraph: “[t]he Union is founded on the principles of freedom, democracy, respect for human and fundamental freedoms, and the rule of law, principles which are common to the member states”, giving much greater legal relevance to the reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms in the paragraph that follows. 4
The system is completed by a number of guarantees. First of all, the right of all citizens to apply to the Court of Justice in relation to acts of European institutions considered contrary to fundamental rights. 5 Secondly, the possibility of sanctions for member states that commit serious and persistent breach of the principles on which the Union is based, 6 and finally, the progressive implementation of an area of freedom, security and justice by means of a set of measures aimed at ensuring the free movement of persons, legal cooperation in civil matters and the control of external borders. 7 Thus, the fundamental rights “as they result from the constitutional traditions common to the member states” 8 are what legally constitute the hard core of European citizenship as far as contents are concerned.
The Treaty of Amsterdam also added something new for such deep regional integration as that of the Union. Even more significant than the incorporation of the Protocol on Social Policy 9 in ushering in the innovative concept of “social citizenship”, is the inclusion of a new title on employment as an issue of common interest to member states.
Regardless of the efficacy of the measures foreseen—which must still be verified—the “right to work” qualifies Europe as an area that is profoundly different from the rest of the international context. Thus the Union, born and developed on free market premises, has rejected a certain kind of global financial economy which considers the intensity of employment as a negative element of assessment on the business market.
Even if there has been no recourse so far to the evolutionary clause envisaged for regulating citizenship, its sphere of rights has been continuously defined and enriched. Nor can that enrichment diminish the importance, in an overall view of Union citizenship, of the rights it originally embodied, in particular, three political rights: the right of every citizen residing in a member state of which he/she is not a national to vote and to stand as a candidate at municipal elections in the member state in which he/she resides, under the same conditions as nationals of that state; 10 the right to vote and to stand as a candidate in elections to the European Parliament in the member state of residence even if not a national, under the same conditions as nationals of that state; 11 and the right of every citizen of the Union, in the territory of a third country in which the member state of which he/she is a national is not represented, to protection by the diplomatic or consular authorities of any member state on the same conditions as the nationals of that state. 12
The rights strongly qualify Union citizenship in that they open up procedures, such as elections, that were previously strictly a national matter. Furthermore, they include subjects previously excluded from voting rights, in as much as they create a single electoral space in the Union. Finally, they project a European citizenship in the international context, which in that particular sphere, seems almost to suggest a kind of Union “nationality”.
These features are all extremely important for aggregating a European political community. On the one hand, Community citizenship, expressed through choice of residence—almost as if in an enlightened contract de citoyenneté—enjoys the same conditions as nationality. On the other, the Union almost has an international legal personality which is expressed not by its unity but by the protection it provides for individual citizens entrusted in third countries to quisque de statibus.
However, in order to effective, the rights of European citizenship must be enforceable in court by their bearers. It can be said that the treaties and, above all, the legal practice of the Union’s Court of Justice provide a sufficiently mature profile in this aspect.
As has been observed, the legalisation of the international space sets the individual, for the first time, in a trans-national legal order within which he/she is also an actor—an actor, as seen, in the Union’s institutions as concerns respect of fundamental rights, but also an actor, as the European Court of Justice has pointed out, in the state in which he/she is a national as a part of the rights enjoyed as a Community citizen, since Court practice has established that the competence of the states in the field of national citizenship must be exercised in respect of Community law.
Even from this essential legal point of view, European citizenship cannot be seen as something “external to” national citizenship. Being of the same nature, it complements national citizenship, constituting a common parameter for citizenship, within which the normal superiority of Community rules is observed. The resolve expressed by the states in the premise to Maastricht, “to establish a citizenship common to nationals of their countries”, has virtually been achieved.
This transversal nature of European citizenship with respect to national citizenship explains the compelling conclusion of the Constitutional Court of the Federal Republic of Germany referred to earlier: “The common Union citizenship established by the Maastricht Treaty forms a legal bond between the citizens of the individual member states which is designed to be lasting; it is not characterised by an intensity comparable to that which follows from common membership in a single state, but it does lend binding expression to that level of existential community which already exists.” 13
But if one looks more closely, this dense formulation also describes the transition from European citizenship seen merely as a legal-formal matter to European citizenship as a bearer of values, which lies in its ability to be a political space composed of civic sense, public spirit, historical and cultural co-belonging in a vital democratic context.
State doctrine and constitutional practice have even stronger doubts about this pervasive value of Union citizenship. They are related to a significant feature of the constituent treaties: the dichotomy between a Union of states and a Union of peoples and the link that establishes the second as the immediate objective of the first. It is evident that the institution of European citizenship in its dual sense, legal and as a value, constitutes the link between the two Unions.
Nevertheless, in spite of the ambiguity, the partiality and the contradictions still to be found at this stage of the European integration process, those doubts seem both unjustified and out of place. They are unjustified because they overlook the qualitative maturation which the rights contained in the notion of European citizenship have historically undergone and are undergoing (suffice it to recall the establishment in Amsterdam of an area of freedom, security and justice). The transition from national citizenship to market citizenship to Union citizenship, which has taken place, above all, with the introduction in Maastricht of non-economic values—a kind of politicisation of the Union—is linked to the freeing of the rights of European citizens from their original economic functionalism. The four freedoms of movement (of persons, goods, capital and services) have become generalised and it can be said that Europe has become the point of reference of a process of identity formation that has immediate effects on life; it is no longer a segmented community.
The doubts are out of place because the democratic deficits in Europe are blamed on the absence of public opinion, political discourse, a political dimension or empirical conditions for democratic development to the point that this creates a democratic fracture. But this view overlooks two factors. The first is the “nationalisation” of the European question; indeed, with elections, referenda, budget policies, political parties and cultural communities in all European states inside and outside the Union focused principally on the problems of continental integration, it is obvious that citizens are aware of attempts to achieve political unity in Europe. The second is that the Union’s governing mechanisms have failed to make use of the civic potential generated by the politicisation of institutions, procedures and notions of Community law which is no longer special law, but has become general law.
By some curious error in perspective, it is still believed that the Union’s lack of democratic legitimation depends on a deficit in citizenship in terms of values, rather than on the weakness and short-sightedness of some institutional choices, unable to keep apace with the maturation that has already taken place. An awareness that they share a common destiny can now be perceived among of all European peoples (even in their opposition to the Union). But some institutional thinking is caught in the vicious circle of denying the constitutional substance of the Union because the European nation does not exist and of denying the existence of a European nation because the Union is without a constitutional basis.
Naturally, it is equally important to avoid exactly the opposite error, that is, a certain kind of democratic utopianism, which resolves the concept of constitution in the normative elements of citizenship. But the solution to the problem is to get the Union’s institution-citizenship circuit working in a different way. The difficulty lies in redirecting institutions that were shaped at the autonomous discretion of the states to be functional to economic objectives to being functional to political objectives in which the rights of citizenship play an equally autonomous role. The search for this new and difficult interconnection is embodied in the issue of the European constitution; there is no use in hiding behind alibis.
Given that citizenship is not incompatible with the supranational nature of the Community order, indeed, the latter confers an added value on the former; given that European citizenship is not only of formal legal significance, but also has a sense in terms of values deriving from the political nature of the rights comprising it and the identity of belonging which it confers; given that the values of European citizenship are reflected in the external identity of the Union as is evident from the practice of including a “democratic clause” and “social clause” in international relations—a practice which makes the “European region” not merely a stepping stone towards globalisation but an economic union that boasts quite different values with respect to the commercial logic found in the trend toward world homogeneity—it follows that the matter of building a European constitutional democracy and, basically, a European identity, depends on the mechanisms of government and representation. But this does not get around the problem of citizenship, either in terms of what it now means, nor in terms of what it could mean.
The Parliamentarisation of the Union
Thus, the European Union is a supranational organisation in which the nation states and national citizenship maintains their role even though they become complementary to the Community order. The main constitutional problem of the Union, then, is that of representation, that is, of ensuring adequate channels of representation or participation at the European level to national components. After half a century of growth, the Union is no longer dominated by the issue of progressive limitations on the sovereignty of the states.
The trans-national democracy of the Union and its overall identity cannot be completely defined if, on the one hand, the nation states (and sub-states) do not participate in it and if, on the other, the citizens of Europe find that it does not complement their citizenship. This is the problem of the Union’s double legitimacy: state legitimacy and democratic legitimacy.
In traditional terms of “forms of government”, one could say that the key question is no longer the effective governance, governability, of the Union, but its parliamentarisation. Certainly, in the short term, with the serious problems of enlargement that emerged immediately after Amsterdam, the primary question seems to be the formation of a will of the Union. It is no coincidence that the “Protocol on the Institutions with the Prospect of Enlargement of the European Union” annexed to the treaty links a simplification of the composition of the Commission and the rationalisation of decision-making in the Council to hypotheses of gradual enlargement.
Then again, concerns about governability have already been allayed by the net strengthening of the powers of the president of the Commission (whose autonomy with respect to member states is contemporaneously strengthened through “nomination” by the European Parliament—a solution that smacks of presidentialism). 14 The exacting diction introduced in Art. 219 TEC, “[t]he Commission shall work under the the political guidance of its President”, is in fact strengthened by a final declaration which states that “the president of the Commission must enjoy broad discretion in the allocation of tasks within the college”. Going instead against the recommendations of the Intergovernmental Conference, however, only a few more matters were made subject to qualified majority vote in the Council.
Nevertheless, from a formal legal point of view, the problem of legitimation of the Union’s government seems to have been satisfactorily solved, in spite of some tenacious opposition. The reasoning of the German Constitutional Court justifying the principle of majority voting in Community decision-making is perfect in this sense. “The member states participate in the process of forming the political will of the alliance of states on the basis of the organisational and procedural law of the alliance, but are also bound by the consequences of this process of foriming political will, irrespective of whether or not their own participation contributes to such consequences.” The attribution of sovereign functions means that their implementation is no longer exclusively up to the will of the individual member state. “To regard this as a violation of the principle of democracy... would assume a concept of democracy which would render any democratic state unable to become part of an integrated inter-governmental community unless the principle of unanimity were adopted. The imposition of unanimity as a general requirement would, by definition, give the will of the individual state priority over that of the inter-governmental community and would therefore bring into question the very structure of such a community.” Furthermore, in the legislative act of authorisation of adhesion to an inter-governmental community lies the democratic legitimation not only of its existence, but also of the community’s capacity to take majority decisions, binding for all its member states.
This bestowal of legal competency on the Union’s government has not, however, been matched by an adequate improvement in democratic control over it. In other words, the attentive control carried out during the launching of the process of integration and the qualification of the institutions must now give way to dynamic control over their functioning.
Thus, the institutional problem today is to create a parliamentary circuit around the Union government able to ensure its representativeness. In view of the considerations already made concerning the continuing vital role of nation states, the Union’s parliamentarisation cannot be ensured by the European Parliament alone. Despite the important steps taken in Amsterdam to extend its powers of co-decision making (simplifying the procedure with the intention of extending it to Third Pillar matters within five years), its powers of consultation and, above all, its power of investing the Commission and its president, the European Parliament cannot cover the entire arc of competencies exercised by the member states in the Council. In particular, it cannot cover their constituent negotiating power.
As with European citizenship, so it can be said that the European Parliament in Strasbourg-Brussels complements the national parliamentary systems but does not replace them. Once again, the German Constitutional Court recalled that “the Union protects and builds upon those principles of democracy which already exist in the member states”.
Thus while the growth of the Union demands a spectacular loss of autonomy in the states’ fundamental power of budget as a result of economic and monetary convergence and the Pact of Stability, there is increasing opposition from parliaments, very often confused and out of place, to the handing over of power.
The trend may be put into other words: the states are transferring governmental management but are demanding parliamentary control—and sovereignty seems increasingly to be considered a matter for parliament.
This is the context that must be taken into account in organising representation in the European constitution. The European Parliament and the national parliaments are destined, in complementary positions, to constitute a European parliamentary system able to generate constant communication among the parliamentarians of the different levels of representation. The European Parliament must, therefore, be conceived as a partial element of overall European parliamentary power.
In the last treaty, this was set down in the “Protocol on the Role of National Parliaments in the European Union”. Infraparliamentary communication has been set up with the obligation to inform national parliaments in good time of all consultative documents and legislation proposed by the Commission.
But the most important part of the Protocol is that which “constitutionalises” a special joint body of European parliaments, the COSAC (Conference of European Affairs Committees). This body has consultative powers—also upon its own initiative—for all acts of the institutions of the Union, in particular with respect to the application of the principle of subsidiarity, the area of freedom, security and justice and matters relative to fundamental rights.
In this almost certainly inappropriate way, especially because of the composition of the body (the contribution of which is, as stated in the Protocol, in no way binding for national parliaments and does not prejudge their positions), the key question of European representativeness has come up at the formal treaty level. And here we can see the network of interconnections which must be made between European parliamentary procedures and national parliamentary procedures, transforming the COSAC into a Constitutional Agency for Interparliamentary Linkage, and using the versatile instrument of the parliaments’ regulatory autonomy to ensure representativeness for the Union. This would leave the problem of a constitutional identity that all European peoples recognise up to the performance of the related national and supranational institutions.
The Constitutional Configuration of the Union: a Union of Constitutions
Continuing the fine blending of supranational and national powers (often roughly divulged as the juxtapositioning of the Community method and the intergovernmental method) that has occurred to date, the European Union will increasingly take on a configuration made up of levels of government that are connected horizontally and not only hierarchised vertically, and organised in new institutional forms with respect to those of state public law and international law.
One formula which effectively renders that originality deriving from the permanent inherent constitutional duplicity, is the so-called bipolar constitutional order—an order which explicitly balances the legitimate interests of the Community and the fundamental responsibilities of the member states and their regions, according to rules that lead to the institutionalisation of the constitutional conflict.
However, as appropriate as it may be, the formula is not complete. It refers, in fact, to the institutional elements of the Union and overlooks the element of citizenship. It deals with the old and new holders of the Union’s political power but neglects the relation between power and citizens. That is why another term is proposed here, a union of constitutions, as an overall description of a phenomenon that involves the integration of orders and not only institutions. What is taking place is the integration of constitutional orders, not only of ordinary norms.
In other words, the constitutional problem in organising the European Union is characterised by a constitution made up of features taken from European constitutional law and features taken from national constitutional law, applicable in as much as they are not contradictory to the former. And vice versa, the constitutional problem of the member states with limited sovereignty is characterised by constitutions that are no longer simply national constitutions (Italian or French or German) because they have incorporated supranational constitutional elements, as concerns both the functioning of political powers and the conditions of citizenship.
When the German Constitutional Court states that: “[t]he Union protects and builds upon those principles of democracy which already exist in the member states”, it identifies a phenomenon that goes far deeper than the famous Staatenverbund (association of states) and one that cannot be resolved by it.
On the other hand, the observations that the new political power has become indispensable for the legitimation of the public power of the member states and that the process of integration limits the force of national momentum in member states reveal the other side of the coin, which cannot be explained away by referring simply to the pace of institutional association.
The union of constitutions does not differ from a unitary constitution only in the different origin of the normative elements that compose it (and the “second degree” nature of European constitutional norms); the main difference is that in the union of European constitutions, the constituent power is reserved for national bodies and, in particular, national parliaments. There is, therefore, a permanent core of national parliamentary sovereignty that is responsible for competencies. A counterbalance to the constituent power of the national parliaments is the power of veto on enlargement of the Union attributed to the European Parliament by the treaties.
This national parliamentary sovereignty would also exist if explicit clauses of (national) constitutionalisation were written into the European Union. In this case, the national parliaments (and national constitutional courts) would maintain their competency to verify that the Union’s growth respects the supreme principles of constitutionalism, such as parallelism between Community growth and adherence to the democratic principle. Karl Schmitt’s well known distinction between the constitution and constitutional laws can be referred to with regard to this lasting control over constitutionality by the national states. 15
Conversely, the union of European constitutions has a normative core that is not available to the nation states. It is composed, on the one hand, of fundamental rights and, on the other, of the acquis communautaire—the Community’s irreversible cement—the unconditional acceptance of which is, significantly, part of the price set by the Union for any future admission.
This then is the complex European institutional fabric, apparently fragile in its ambiguity, and felt to be stretched out of shape by those who, having a predetermined configuration in mind, complain about pieces being missing merely because they “should be” there. The history of constitutional law should suggest more realistic assessments and a commitment towards reform, without shortcuts, in keeping with the direction that the course of events has already indicated for the European supranational organisation.
The union of constitutions is not a matter of juxtaposing but of creating communicative relations. This occurs with the immediate transposition of constitutional principles that arise as “European” into the constitutional organisation of member states—suffice it to think of the invasive force that principles such as subsidiarity and proportionality, the financial and institutional “culture of stability” or the recognition in the sphere of European citizenship of municipal democracy as the primary institutional form of wholly European government have had and are having not only on public policy but on the organisation of the states. And, vice versa, the communication of national constitutions to the European constitution: the processes of sub-national territorial organisation that structure Europe in a gradual subsidiarity of power; and the representative tensions expressed, as seen, by national parliaments.
Thus, the organisation that has developed in these last forty years of the “short century”—and therefore over a longum temporis aevum, especially for those who look at what is happening outside of Europe—is not rational for the very reason that it has been existing for so long.
There is a black hole of representativeness in its mechanisms which can throw all the rest into crisis and which de facto already prevents the necessary improvements in decision-making efficiency and institutional compactness. It becomes more threatening with every institutional repercussion generated by policies that are only apparently sectoral, such as the great challenge of monetary unification, the division of labour in defence policy between NATO and the WEU, external relations with other multi-state regions of the world, the “special” transatlantic relations with the United States. And above all, with the emergence of the “institutions of differentiation” and the formulas for strengthened cooperation. Evidently, enlargement to the east is not the only test bed of the functionality and representativeness of European institutions.
But the institutional work required to bring together supranational and national institutions in a union of constitutions is a far cry from “refounding” it or returning to a free trade zone. Europe’s parliamentary power as a whole must be called upon to accomplish the necessary work of reform that governments are clearly no longer able to do. Basically, it is a matter of anticipating the role of national parliaments and the European Parliament: from ratification to direct constitutional revision, further developing the constitutionalisation of COSAC to achieve an agency for the coordination of constituent dialogue among parliaments. The Commission and the Council would maintain their powers of initiative and “technical direction”, but their mandates would be constantly verified by institutional bodies charged with underlining their political responsibility and therefore also capable of discovering the games by which simple reservations on the part of the executive power—for strictly domestic purposes—are presented as insuperable areas of national interest, closed to communitarisation.
Recentring the Union around the parliaments does not necessarily mean envisaging a weak political system for the Union. It means activating the parliaments to pursue what has not been completed after the long phase of government intermediation has run its course. It is true that in the new order, the old centres and the new centre constitute elements of a system lacking a vertex, but it is also true that in a union of constitutions the European constitutional configuration would not be floating in a void, but would be interconnected to that of each national state from which it takes the roots needed to be a real constitution.
The negotiating features of the Union’s government, so distant from a confrontational democracy and laboriously being brought closer to a majority democracy, are the fundaments required for governing complex and advanced pluralisms, for effective procedural federalism. That is why, given the incredible difficulties that Agenda 2000 has come up against and the need for innovations in the institutional method, the reformism of those who feel that the current structure is not a simple transit station towards the future, but represents the new structures of the future seems more effective.
Accepting the formula of the union of constitutions, which involves overcoming the dichotomy of separation-coordination among Community and state orders, this vision has a more precise foundation. The European constitutional identity, like the future, has an ancient core.
Andrea Manzella is a Member of the European Parliament and Professor of Constitutional Law at LUISS University in Rome
Endnotes
*: Translation is by Gabriele Tonne. Back.
Note 1: Art. 7 TEU and Art. 309 TEC of the Treaty of Amsterdam. All references hereinafter will be to the Treaty of Amsterdam, as set down in the Gazzetta Ufficiale delle Comunità Europee, C340, 10 November 1997. Back.
Note 2: Art. 5 TEC; Protocol on the Application of the Principles of Subsidiarity and Proportionality annexed to the Treaty of Amsterdam. Back.
Note 7: Art. 2 TEU and Articles 61 and 69 TEC. Back.
Note 9: Articles 136-145 TEC. Back.
Note 13: This and other references to the “Karlsruhe Decision” are taken from “Germany, Federal Constitutional Court Decision concerning the Maastricht Treaty”, International Legal Materials, vol. 33, no. 2, 1994, pp. 395-444. Back.
Note 15: K. Schmitt, Il nomos della terra (Milan: Adelphi, 1991). Back.