There are many different definitions of constitutionalisation in the scientific literature. Wiener (2005) elaborates a definition of constitution, which says it is derived from a broad normative consensus and holds that it should encompass three core principles: rights, separation of powers and representative democracy.
The constitutionalisation of each union of states is a controversial matter, both from a political and a juridical point of view. It can be seen as an ever-changing process, which follows, and simultaneously, guides the events of the organisation of a given community. We should consider the differences between constitutionalisations based on an intern-state treaty and the one based on a formal constitution. The EU is currently in balance between the two models.
The Lisbon treaty, its interpretations as well as its implications, within and outside the EU, show where this process is driving us.
Constitutions and constitutionalisation of a union of states
If a constitution refers to a nation-state, it is a series of fundamental principles used to set a type of State, a pattern of Government’s functioning, a system of rules and some guidelines used to separate, distribute and limit public powers.
A union of states needs a set of rules and principles to fix how many institutions can work together in the supra-national framework. Actually, the process of constitutionalisation is more complex in a union of states than in a nation-state.
The constitution of a union of states is a document which can have the legal nature of an international law act or of a domestic law act. An international law act corresponds to a treaty, while the domestic law act is a constitution. These distinctions have important implications in terms of obligation given by these acts. To the legal nature correspond specific form of documents and the specific form gives an act more or less force. Indeed, respectively, from an international treaty or a constitution come weak or strong rules.
Secondly, a constitution of a union of states has to organise an institutional system to ensure the whole people of the union can participate and be represented.
The third controversial question is about the division of competences between authorities of member states and authorities of the union of states.
This distribution of competences depends mainly from the higher or lower federal imprint left on the constitutionalisation (this matter arises also a problem of sovereignty). The USA represents the most important example of federal state. In some scholars’ opinion, the most recent phases of the European integration process show how the EU is evolving neither as a federation (e.g. the USA) nor as a confederation (e.g. Switzerland), but towards a “new genus”. Prof. Giuliano Amato claims that the EU is growing as a “hermaphrodite model”: «Through the expression “hermaphrodite Europe” I try and explain the European federalism is a governance with elements of international law and domestic law merged together, because it is a supranational arena which subjects are States, citizens, multinational companies and non-profit organisation».
Constitutionalisation is a continuous process and in the case of the US it is founded on a written constitution. The case of the EU is diametrically opposed, because the EU hasn’t got a constitutional document. Constitutionalisation of the EU is happening without a well-defined constitution. It has been developed as a series of interstate treaties and judgments of the European Court of Justice.
Since the first treaty in 1951, the European integration process caused a continuous shifting of competences from the nation-states to the European common institutional level. The Maastricht treaty changed the partitioned system of the European Communities into the EU and the constitutionalisation is continuing with the debate around the Lisbon treaty (which entered into force on 1st December 2009), after the flop of the Constitutional Treaty. When many States create and give to the new institutions the task of managing some policies, from these common policies, an integration process starts. The elaboration of common policies needs common rules that contribute to promote a new legal order.
The EU constitutionalisation and the Lisbon treaty’s implications
From the beginning of the European integration process, nobody could have predicted where we are. The economic ambitions to create a single market have implicated more than commercial trade, in fact behind commercial trade there is a continuous exchange of ideas which makes possible a blending of traditions and cultures that has driven us in the last decades to a common enrichment. The establishment of the European citizenship by the Maastricht treaty and the role carried out by the European Court of Justice are two outcomes of the same process. The ECJ contributes to the constitutionalisation of the EU with a policymaking role which transforms the nature of the European governance. As Weiler(1999:27) stressed: “the national courts and the European Court are thus integrated into a unitary system of judicial review”.
The hybrid nature of the EU as a mix of Communities and intergovernmental features are preserved and developed by the Lisbon treaty with more elements of continuity than elements of rupture with the past. The LT is the heritage of the Constitutional treaty.
It is hard to say with certainty that the same overrepresentation happens in the EU because of its extraordinary institutional system. In light of the composition, duties and operating modes of the European Commission, those of the ECJ, the possible problem of overrepresentation of smaller states does not concern these institutions but rather the Council of the European Union and the European Parliament.
The Council shares the legislative powers with the EP and it is set up by one representative for each state, who can commit the single member state. The Council works and takes decisions according to different types of majority. As of 31 October 2014(when the concerning part of the LT will be in force) the Council will work without overrepresentation thanks to the new criteria which will be used to vote considering the population of each state.
Regarding the EP, there is no question of overrepresentation, not only because the seats are allocated proportionally to the population of each member-state but also because the members of the EP are grouped by political affinity and not by nationality.
The only exceptions regard the decisions taken by the Council in foreign or fiscal policy. According to the LT, they require the unanimity rule.
The multiple separation of powers characterises both the US and the EU (in a more clear way after the LT). In the LT, the term “federal” is not included in any part of the document, but the innovations provided for the EP and the Council introduce some federal aspects in this institutional system. The EP and the Council can be considered respectively, the former representing citizens and the latter representing member-states’ interests. Moreover, the articles 4 and 5 of the treaty of the Functioning of the European Union establish the competences’ distinction between the ones assigned to the EU, those of the Member States and the shared ones.
This formalisation of a cooperative federalism, which sets up the power of the center and leaves to the member states the remaining ones is exactly what happens in the US (since 1791 when the tenth amendment was approved):
Among the peculiarities of the European integration process there is the mechanism of reinforced cooperation. It provides enhanced cooperation between those member-states which want to create a deeper integration within the framework of the Union’s no-exclusive competences.
Within the EU’s constitutionalisation there have been some decisions which mark a turning point. This is the case of the first direct elections in 1979 for the EP. In fact, even if this institution has been already set up by the treaty establishing the European Coal and Steel Community, it represents a revolutionary step in our constitutionalisation process. The direct election of the EP, the extent of the co-decision in the legislative procedure, together with the method of the composition of the Council of Ministers (which is formed by the ministers of twenty-seven states, who are people appointed by national governments elected by citizens) as well as the European Council composition and the method of appointing commissioners is the response to the people who claim there is a democratic deficit in the EU institutional system. Surely, this is a response and probably not the definitive solution, because, like the constitutionalisation, the democratisation in a compound democracy is a permanent adaptation process with the target of joint progress and based on the principles of multiple separation of powers and multiple legitimacies of our institutions.
In the US, from the 1787 onwards, sovereignty has been enshrined in the Constitution. Through the preamble “We the people”, the colonies' delegates transferred sovereignty from the people to the Constitution. The America institutions at the federal level are horizontally equal and have been constitutional. Instead, in the European countries, no powers can be considered equal to the Parliament, so sovereignty has traditionally been enshrined in national parliaments (because the latter alone represent the popular will) and has been parliamentary. For these reasons, in Europe, the institutions of the governors (the legislature) coincides with the will of the governed ones (the people), indeed these are systems based on monistic constitutions. In the US there is a clear distinction between the decision-making process by the people (expressed by the Constitution) and the decision-making process by the governors (expressed by the ordinary law), in fact it is a system based on a dualistic constitution.
The EU is something different compared to both a monistic constitutional system and a dualistic constitutional one. The LT is a transitory constitutional document, but meanwhile a step towards a pluralistic constitutional system for a compound democracy.
The constitution can be defined “pluralistic”, because of the different sources of legitimation (from states through ratifications and from people through referenda), the various distributions and divisions of powers between member-states and the institutions of the EU (for some principles of sharing competences, subsidiarity and proportionality) as well as the institutions of the EU (to realise a continuous complementarity among their actions).
The Lisbon treaty is not a complete constitution of the European Union and the constitutionalisation process is not finalised yet. The LT cannot be considered a constitution or a suitable constitutional document for the EU because, even if it provides important solutions to many ambiguous questions and problems/issues of the European integration process, its principles lack juridical force.
The following articles of the consolidated versions of the Maastricht treaty (on the European Union):
a)Art. 10: The functioning of the Union shall be founded on representative democracy;
b)Art. 13: The European Union’s Institutions;
and those of the treaty on the Functioning of the European Union:
a) Art. 2: The EU’s exclusive competences and shared competences;
b) Art. 20: Citizenship of the Union is established;
represent a series of important principles, which contribute to giving a general outline of a constitutional system, but they are insufficient rules. However, by considering for example Article 126 of the treaty on the Functioning of the European Union and the consequences of the current crisis on the integration process, the need for an EU Constitution becomes clear:
Article 126 of the treaty on the Functioning of the European Union states that the European member states shall avoid excessive government deficits. The current crisis shows these rules haven’t got the essential force to be kept up by the European member states (article 126 is an example).
In fact, in light of the decisions taken by the latest European Council meeting (8-9 December 2011), the draft of an “International Agreement on a reinforced Economic Union” says:
“NOTING that compliance with the obligation to transpose the "Balanced Budget Rule" into national legal systems at constitutional or equivalent level should be subject to the jurisdiction of the Court of Justice of the European Union”.
This possibility corresponds to the growing awareness that the rules established by the treaties are nowadays not enough to react to the current and future European common matters, bearing in mind that the form of a document determines also the rules’ legal force. Today the European member states which signed the deal of the latest European Council have to transpose the "Balanced Budget Rule" into national legal systems at constitutional or equivalent level, i. e. changing the nation states’ constitutions. This commitment means more than an amendment to national constitutions, in fact it shows the need for constitutional rules for the EU and it might also be the turning point which will drive us to a formal Constitution. As I said in the beginning, with this paper I tackle the LT’s implications. Probably, the most important result is the inadequacy of rules without constitutional form and force. The EU currently asks the European member states for a new constitutional rule, but there will be a day when the EU will wish for a common Constitution. We need a collective effort to preserve and fight for our European model.
Matteo Laruffa is a student of the Faculty of Political Sciences and International Relations at the Luiss Guido Carli University in Rome. laruffa.matteo@gmail.com