Jean-Claude Piris *
The subject of a "Constitution for Europe" has become a highly topical one, more and more debated. It is sometimes seen in the comparative light of the constitutional process which took place in the United States of America some two hundred years ago, and which was about the creation of one State, one Nation, one People. Along the same lines, some think that a "European Constitution" should be adopted as a basis for the establishment of a future European Federal State. Among those - more numerous - who do not think that the European Union (EU) should become a "United States of Europe", such a Constitution is sometimes seen as either necessary or desirable, in order to give more legitimacy to the EU.
In fact, the Court of Justice of the European Communities has already characterized the Treaties which are the foundation of the European Communities (EC) as "a Constitutional Charter"1 . Does this imply that the EU already has a "Constitution" ? Is this "Constitution" similar to the Constitution of a State ? If that is not the case, how could it be transformed in such a way ? And if that does not look desirable or feasible, how would it be possible to improve the constitutional features of the European Union's founding Treaties ?
In very simple terms, the present situation might be described as follows:
The EU has law-making institutions, including a Council composed of Ministers who are members of national governments of the Member States, and a directly elected European Parliament. The Council and the Parliament share the power of co-deciding legislative, administrative and budgetary acts, which are proposed by the Commission. The Commission, which exercises the powers conferred on it by the Council for the implementation of Community law, also ensures that this law is applied and may take a Member State to Court if it fails to fulfil its obligations. The Parliament shares with the Member States the power to approve the appointment of the President of the Commission and of the Commission as a whole; the Parliament also has the power to remove the Commission from office. The laws adopted by these institutions within the fields of power of the EC are superior to the laws of the Member States and may have direct effect on the citizens of the Union. The Union has a single market and manages a single currency and monetary union for most of its Member States. There are a number of fields for which the Member States have lost power to adopt legislation or to negotiate international agreements. There are other fields where "laws" (regulations and directives) or treaties can be imposed on the Member States and which they are obliged to implement, or else being faced with having to make lump sum or penalty payments, as well as paying compensation to adversely affected people. The Court of Justice has the power to rule on disputes between the institutions, between institutions and Member States about the extent of their respective powers, and on the rights and obligations of Member States and citizens under European law.
This "new legal order" is embodied in fundamental texts which define these institutions and their powers, and oblige them to respect the rule of law and human rights. Do these fundamental texts, which have been adopted by the governments of the Member States and approved by their peoples through referenda or through their elected representatives, form a "Constitution"2?
But what is a Constitution ?
Let us look up the definition of what a Constitution is, in a standard law dictionary. That should help us to make sure that our analysis, at least at its point of departure, is as objective and scientific as possible. The definitions given in law dictionaries3 can be broken down into a number of elements :
Before trying to check the situation of the EU against these elements, let us make a preliminary remark.
Of course, the authors of the EU Treaties could choose, if they so desired, to use the term "Constitution" to designate those Treaties. That would be seen as a political gesture, but if nothing was changed as to the substance of the Treaties, it would not necessarily mean that the EU had a Constitution like that of a Nation State. A magnificent example exists in international law, for an entity which obviously does not pretend in any way to be a State: the International Labour Organization (ILO) was created in 1919 by the adoption of a "Constitution"; the ILO is still governed to this day by its founding "Constitution".
It follows from this preliminary remark that the debate about a "Constitution for Europe" is mainly a political one 4.. To be or not to be in favour of such a Constitution often means to be or not to be in favour of the establishment of a Federal or a Confederal European State. This political debate is legitimate. However, lawyers should try to frame their reflections, as much as they can, on a more legal and institutional basis. On the one hand, their reflections might be useful as a modest contribution intended to clarify the political debate. On the
other hand, they might show that, even if (or as long as) the political debate does not receive an answer, that should not prevent the constitutional features of the EU's founding Treaties from continuing to be improved.
The four following questions will be addressed in this paper:
i) Do the international treaties on which the European Union is founded constitute a "Constitutional Charter" ?
ii) Is the EU's Constitutional Charter comparable to the Constitution of a State ?
iii) How could the EU's Constitutional Charter be transformed into a Constitution like that of a State and does this look feasible ?
iv) If that is not the case, how would it be possible to improve the EU's Constitutional Charter ?
* The author is the Legal Adviser of the Council of the European Union and was the Legal Adviser of the intergovernmental conferences which negotiated and adopted the Treaty of Maastricht and the Treaty of Amsterdam. The opinions reflected in this paper are purely personal. This paper is based on a lecture given to the Harvard Law School on 3rd May 1999. It takes into account the results of the European Council which met in Cologne (Germany) on 3rd and 4th June 1999.
1 Judgment of 23 April 1986 in Case 294/3, Les Verts, ECR 1986-4, p. 1365. See also Opinion 1/76 of 28 April 1977, ECR 1977-I, p.758 point 12; Order of 13 July 1990 in Case C-2/88, Zwartfeld, ECR 1990-7 I, p.3372;Judgment of 23 March 1993 in Case C-134/91, Beate Weber vs. European Parliament, ECR 1993-I, p.1093, point 8.
2 A number of scholars are of the opinion that this is the case, in substance:
- Jörg Gerkrath: "L'émergence d'un droit
constitutionnel pour l'Europe", Editions de l'Université de Bruxelles,
- Jean Paul Jacqué: "La Constitution de l'Union européenne", in Actes du Colloque of 18-19 June 1993, Revue universelle des Droits de l'homme, 1995, nº 11-12, pp. 397-428;
- Denys Simon: "Le système juridique communautaire", Presses universitaires de France, Paris, 2nd edition, 1998;
- Francis Snyder: "General Course on Constitutional Law of the European Union", European University Institute, Florence, 1998.
- J.H.H. Weiler : "The Constitution of Europe", Cambridge University Press, United Kingdom, 1999.
3 According to the definition in Black's Law Dictionary (Definitions of the Terms and Phrases of American and English Jurisprudence, 6th edition, 1990) , a Constitution is :
"The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. The written instrument agreed upon by the people of the Union (e.g. United States Constitution) or of a particular state, as the absolute rule of action and decision for all departments (i.e. branches) and officers of the government in respect to all the points covered by it, which must control until it shall be changed by the authority which established it (i.e. by amendment), and in opposition to which any act or ordinance of any such department or officer is null and void"..
stands before a series of ongoing constitutional debates. The focus in the
future will be on the construction of a legitimate constitutional order for
policy-making responsive to the desires of national governments and their
citizens". Andrew Moravcsik and Kalypso Nicolaïdis: Federal Ideals and
Constitutional Realities in the Treaty of Amsterdam, Keynote Article, Journal
of Common Market Studies, Volume 36, Annual Review, September 1998, p. 34.
© Jean-Claude Piris 2000