Constitutional Politics in the European Union: The Convention Moment and its Aftermath

297 Pages·2007·1.36 MB·English

by  Dario Castiglione

Constitutional Politics in
the European Union
The Convention Moment and its Aftermath
Dario Castiglione, Justus Schönlau,
Chris Longman, Emanuela Lombardo,
Nieves Pérez-Solórzano Borragán and
Miriam Aziz
Palgrave Studies in European Union Politics
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Schimmelfennig, Swiss Federal Institute of Technology, Switzerland
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THE EUROPEANIZATION OF BRITISH POLITICS
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LEADERSHIP IN THE BIG BANGS OF EUROPEAN INTEGRATION
Milena Büchs
NEW GOVERNANCE IN EUROPEAN SOCIAL POLICY
The Open Method of Coordination
Dario Castiglione, Justus Schönlau, Chris Longman, Emanuela Lombardo,
Nieves Pérez-Solórzano Borragán and Miriam Aziz
CONSTITUTIONAL POLITICS IN THE EUROPEAN UNION
The Convention Moment and its Aftermath
Morten Egeberg (editor)
MULTILEVEL UNION ADMINISTRATION
The Transformation of Executive Politics in Europe
Stefan Gänzle and Allen G. Sens (editors)
THE CHANGING POLITICS OF EUROPEAN SECURITY
Europe Alone?
Isabelle Garzon
REFORMING THE COMMON AGRICULTURAL POLICY
History of a Paradigm Change
Heather Grabbe
THE EU’S TRANSFORMATIVE POWER
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THE EUROPEAN UNION AND THE UNITED NATIONS
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TURKEY AND THE EUROPEAN UNION
Prospects for a Difficult Encounter
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THE EUROPEAN UNION AND PARTY POLITICS IN CENTRAL AND
EASTERN EUROPE
Hartmut Mayer and Henri Vogt (editors)
A RESPONSIBLE EUROPE?
Ethical Foundations of EU External Affairs
Lauren M. McLaren
IDENTITY, INTERESTS AND ATTITUDES TO EUROPEAN INTEGRATION
Christoph O. Meyer, Ingo Linsenmann and Wolfgang Wessels (editors)
ECONOMIC GOVERNMENT OF THE EU
A Balance Sheet of New Modes of Policy Coordination
Frank Schimmelfennig, Stefan Engert and Heiko Knobel
INTERNATIONAL SOCIALIZATION EUROPE
European Organizations, Political Conditionality and Democratic Change
Justus Schönlau
DRAFTING THE EU CHARTER
Rights, Legitimacy and Process
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Constitutional Politics in
the European Union
The Convention Moment and its Aftermath
Dario Castiglione
Reader in Political Theory
University of Exeter, UK
Justus Schönlau
PES-Group Secretariat
Committee of the Regions, Belgium
Chris Longman
Deputy Director of the Centre for European Studies
University of Exeter, UK
Emanuela Lombardo
Research Fellow
Complutense University of Madrid, Spain
Nieves Pérez-Solórzano Borragán
Senior Lecturer in European Politics
University of Bristol, UK
and
Miriam Aziz
Associate Professor
University of Siena, Italy
© Dario Castiglione,Justus Schönlau,Chris Longman,Emanuela Lombardo,Nieves
Pérez-Solórzano Borragán and Miriam Aziz 2007
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Contents
Preface and Acknowledgements vii
Introduction: a Convention Without a Constitution? 1
Part I: The Convention as a Moment of EU
Constitutional Politics 7
Introduction to Part I 9
1 Constitutional Politics in the European Union 11
Dario Castiglione
2 Constitutional Moment or Constitutional Process? 26
Dario Castiglione
Part II: The Convention Experiment 47
Introduction to Part II 49
3 The Convention on the Future of Europe and its Antecedents 51
Justus Schönlau
4 Membership, Representation and Accountability 74
Justus Schönlau
5 The ‘Convention Method’ 90
Justus Schönlau
Part III: The Convention as a Mirror of European Society 113
Introduction to Part III 115
6 The Language Regime of the Convention 118
Chris Longman
7 Gender Equality in the Constitution-Making Process 137
Emanuela Lombardo
8 The Participation of Civil Society 153
Emanuela Lombardo
9 The Contribution of Business Interests 170
Nieves Pérez-Solórzano Borragán
v
vi Contents
10 The Debate on European Values 186
Chris Longman
Part IV: The Convention and its Aftermath 205
Introduction to Part IV 207
11 The Convention and the ‘Living Law’ of the European Union 209
Miriam Aziz
12 Conclusion: From the Convention to the Referendums
and Beyond 229
Justus Schönlau and Dario Castiglione
Appendices 255
Table A1: The development of the Preamble 257
Table A2: Articles I-1 to I-3 – DCT and TCE compared 261
References 264
Bibliography 268
Index of Names 284
Index of Subjects 285
Preface and Acknowledgements
This book was first planned at the time when the ‘Convention on the Future
of Europe’ was drawing to its conclusion. Most of its chapters were drafted
during the IGC period and the half-interrupted ratification process. It was
finally completed at the beginning of 2007, when the ‘reflection period’
seemed to come to a close, and the German presidency of the European
Council manifested the intention to inject new life into the moribund ‘Treaty
establishing a Constitution for Europe’, even though this may eventually be
presented as a treaty on institutional reform rather than as a constitution.
The book, like the Constitutional Treaty itself, has therefore gone through
several phases and upheavals (more, perhaps, than we might have wished).
Indeed, it is always difficult to write with a moving object in view. But, as we
hint in the title and make clear in the rest of the book, rather than being con-
cerned with the EU Constitution as an end-product, in this book we focus on
the political process through which the EU has attempted to give itself a for-
mal and comprehensive constitutional text – though in the form of a treaty.
Our real object of study is not the EU Constitution, but EU constitutional
politics, and in particular the Convention as a ‘moment’ in the ongoingcon-
stitutionalisation of the EU.
As we suggest throughout the book, this ‘Convention moment’ has a
meaning of its own, albeit a contested meaning, but one that should not be
overlooked, even though it may end in a ‘defeat’ of the Constitutional
Treaty. The EU does not (yet) have a formal constitutional text, but, warts
and all, it has had its first public constitutional debate. In this respect, the
‘Convention on the Future of Europe’ represents an important ‘moment’ in the
ongoing constitutionalisation of the European Union, and as such deserves
being studied in its own right. This book is a contribution to that study.
Authorship
This book aims to be a co-ordinated study of the Convention moment from
different perspectives. Throughout the phases of conception, drafting and
revising, we have collectively discussed its shape and content. As a book, it
has therefore six authors. But its parts are the responsibility of the individual
authors, as indicated in each chapter. Although the scope and the under-
lying argument of the book have a fundamental unity and coherence, in treat-
ing different aspects of the Convention, of its context, and of its aftermath,
individual authors have followed different approaches and occasionally
taken different positions. We make no apology for this, since imposing a sin-
gle line of argument might have prevented us from exploring our subject in
vii
viii Preface and Acknowledgements
full, and from different perspectives. Hopefully, the overall effect succeedsin
offering a broadly unitary picture, as that produced by the differently
coloured pieces of a mosaic, rather than by the neat brushstrokes of a hyper-
realistic painting.
The book originated as part of a European research project financed by the
Fifth Framework Programme of the European Commission. The general
theme of the project was ‘Citizenship and Democratic Legitimacy in the
European Union’ (CIDEL), and was co-ordinated by ARENA at the University
of Oslo. As part of this project, a number of researchers from various coun-
tries worked on constitutional issues and constitution-making in the EU.
This book is one of the products of that research, and emerges from the work
done by a group of researchers connected at different times to the University
of Exeter, and co-ordinated by Dario Castiglione. Although not formally
linked to Exeter, two of the authors, Emanuela Lombardo and Nieves Pérez-
Solórzano Borragán, also shared an interest in the research, and agreed to
join in the production of a collective book.
A note on terminology
Although this book is part of a specialised literature on European constitu-
tionalism and constitution-making, its presentation and terminology are
easily accessible to the general reader. Most of the more specialised termin-
ology is easily accessible from the context, and reproduces standard under-
standings available in the literature. However, a few clarifications on how we
use this terminology may be in order.
For a general clarification of the different meanings attributed to specific
terms, within the general family of concepts of ‘constitution/constitutionalism’,
we refer to what is said in Chapter 1. Most of these terms are contested, so
there is no agreed definition. The context will usually indicate the precise
sense in which they are meant in different chapters. The sense in which we
use ‘constitutional politics’ in the title of this book has already been indi-
cated at the beginning of this Introduction and is further discussed in
Chapter 1. A number of chapters refer to the more specific opposition
between normaland constitutionalpolitics in a normative sense. This distinc-
tion has become common currency in the constitutional literature thanks to
the influential work of Bruce Ackerman (1991); its normative purchase is dis-
cussed in Chapter 2, though in other parts of the book it is used as shorthand
for a broad distinction between a more ‘deliberative’ and an interest-based
kind of politics. By ‘documentary’ constitution, an expression which appears
in a number of chapters, the more narrow sense of the constitution as a ‘docu-
ment’ is meant. Given that part of the argument about the ‘constitutional-
isation’ of Europe relies on a broader sense of the constitution as an organising
norm/structure of either the polity or the legal order, the reference to a move
Preface and Acknowledgements ix
towards a ‘documentary’ constitution in the EU refers to the more specific
attempt to fix that norm/structure in a single text.
The title of this book refers also to a ‘Convention moment’. In some of the
constitutional literature, the idea of a ‘constitutional moment’ is closely
associated with that of ‘normative’ politics, and the way in which political
mobilisation in and through a particular momentgives political action a con-
stituentforce. The relevance of the idea of a ‘moment’ (as opposed to a more
diffuse idea of constitutional foundations through time) is discussed in both
Chapters 2 and 11. These chapters refer to ideas of an ‘embedded’ constitu-
tion and the ‘living law’ respectively, as understandings of the constitution
as developing through time, rather than foundational events. (The expres-
sion ‘living law’ tends also to suggest an intrinsic correlation between the
constitutional and the legal order.) When we refer to the ‘Convention
moment’, therefore, we wish to indicate the possibility that the Convention
on the Future of Europe worked, or might have worked, as the central event
in a European constitutional moment. This, however, is only a suggestive
use of the idea, for there is no a priori assumption on our part that this was
indeed the case. Most of the book is meant to investigate whether such an
interpretation stands scrutiny.
Throughout the book we also use expressions such as ‘Convention experi-
ment’ (occasionally ‘experience’) and ‘Convention method’. The former is
usually meant as a more ‘descriptive’ way of referring to what the
Convention meant as part of the EU constitutionalisation process. Although
it makes implicit reference to the more normative use of ‘Convention
moment’, it mainly wishes to indicate that the Convention represents a par-
ticular experience/experiment in the history of European integration.
‘Convention method’ is used in a more generic sense, as the combinations of
methods and principles associated with the use of a ‘convention’ as a way of
either writing or drafting a constitutional text. Part of the intention of this
book is to explore whether the ‘Convention experiment’ either produced or
followed a ‘Convention method’ that may have wider significance for the
future constitutionalisation of the EU.
When in the book we talk about the ‘Convention’ we refer to the
‘Convention on the Future of Europe’ established at Laeken. (For a more pre-
cise history of how this came about, see Chapter 3.) But in a number of
places (and particularly in Chapters 3, 7 and 10) we also talk in some detail
of the previous Convention, the one that drafted the ‘Charter of
Fundamental Rights of the European Union’, eventually proclaimed at Nice,
but not as yet officially integrated within the EU official legal provisions. In
such cases, we refer to the former as the ‘Constitutional Convention’ and to
the latter as the ‘Charter Convention’.
Finally, we normally refer to the members of the Constitutional
Convention as the conventionnels (as they themselves did) rather than the
clumsier ‘members of the Convention’. We use a variety of expressions to