The Constitution for Europe. The deliberative democracy and the way towards the post-state reality.

Autor: Bartłomiej Baryła


The European Union is not a state. It is also not an international organization. There is no proper notion to describe the complexity of interdependence between member states, European central institutions and citizens. Many scholars are using the quasi- prefix to describe it as a quasi-state, quasi-organization or other form of governing. However, no matter what name we weld with the entity its nature is closer to state than anything else. Through the last 50 years the community of western European states has changed significantly both in size and in nature. In recent years the level of interdependence and complexity lead to the creation of number of documents which become de facto constitution of the EU.Constitution means many different things. The most basic is the way the things are composed. This is the literary meaning. There is also a more technical meaning of “the system of fundamental principles according to which nation, state, corporation, or the like, is governed” (Weiler, 1998:viii). Finally there is the meaning of physical document which embodies those principles and writes them into formal language of law. When the constitutional scholars are concerned the term constitution is applicable to both: fundamental principles and the document. It could be seen as the document is the only paper form with no value added but there is a significant role to be played by that document as a symbol. It is best seen in the case of façade constitution since there is no legal value to that but the document remains as in power. There are number of unwritten constitutions which are also playing the same role as the power distribution blueprint. Constitutions are basically the rules of profound weight to the proper functioning of the state and state’s institutions. It formalizes the distribution and a source of sovereignty in the state, is the state federal, unitary or confederal and is the primary source of law a tradition, will of the people or the divine law. Another important feature is the rules of separation of powers. The branches of the government (legislative, judicial and executive) must be balanced and independent due to the threat of domination of one branch by another one and uneven governing process which in a result would be ineffective. Another one would be the symbolic role and definition of symbols unifying nation and acting as a form of “social contract”, primary source of legitimation of the governance forms.

The EU

The European Union is not a state. It is also not an international organization. There is no proper notion to describe the complexity of interdependence between member states, European central institutions and citizens. Many scholars are using the quasi- prefix to describe it as a quasi-state, quasi-organization or other form of governing. However, no matter what name we weld with the entity its nature is closer to state than anything else. Through the last 50 years the community of western European states has changed significantly both in size and in nature. In recent years the level of interdependence and complexity lead to the creation of number of documents which become de facto constitution of the EU.

The most important fact about the European constitution is the process “spread”. It is not a Big Bang thing. The process of constitutionalization was long and could be dated back to the beginning of the European Community in early 1950s. No single date, event or speech is a start point. The process was slow and evolutionary. Each next treaty moved the European citizens towards the final state, a united but not yet unified Europe. It was partially due to the state of minds of the post-war Europe. Everybody wanted the safety and change but to accept another revolution and gave up the sovereignty of the nation-states was too much for an average person. Another reason for unification but with significant field of independence was the presence of communist Russia with its rockets and aggressive mission of spreading the ideology. The final goal would be achieved gradually with step by step technique, which final steps would be the constitution. Right now the EU is not a unified set of rules and normative acts. The different sources from which the current Union is composed are responsible for its complexity. When in 1993 the European Economic Community become European Community it has developed, together with Police and Judicial Co-operation in Criminal matters and Common Foreign and Security Policy, into the elements of the European Union. Differences in sources of law, responsibilities and structure formed the three pillars of contemporary EU. The Treaty proposing the Constitution would unified all these acts and form single European Union. The Constitution itself had a purpose of “finality politics”, which was the idea behind the every step in European integration. The main point of integration was not to overcome the war costs or the shortages of raw materials in 1950s but to create a solid unified polity with equal status and rights to all citizens. The goal like that was not reachable in the mid XX century but the fathers of EU decide that this long journey has to start somewhere. The Treaty of Rome and other treaties of that time were to start the process which towards the end would transform the members state into the super-state like structure.

The Treaty establishing a Constitution for Europe

One may wonder why the timing of the proposition was just like that. It was not accidental. It may seem that the ruling elites decided that this is the high time for such a step. After 50 years of slow integration there is a time for change. Others might think that 2004 was the last possible moment before quite homogenous and alike-thinking “Fifteen” would be transformed into disunited “Thirty-something”. No matter what reasons were behind the beginning of the new millennium was the breakthrough for the consolidation process in the EU. Joschka Fisher is credited for the initiation of this process in early 2000 (Fisher, 2000). In late 2001 the machine was already working. The Laeken declaration begin what later become the draft of the Constitution. The „Draft Treaty establishing a Constitution for Europe” was first published in July 2003 (Menéndez, 2005).

After the painful process of drafting the text where hundreds were involved from the whole Europe, and hundreds controversies were raised the Treaty establishing a Constitution for Europe was signed on 29th October 2004 by the representatives of all member countries and was due to be ratified by member countries’ societies or parliaments in coming months. Huge media campaign was launched by both proponents and adversaries of this leap in history. For months most countries by parliamentary vote decided to apply agreed norms and adopt the constitution as the new fundament of the European community of independent nations. It might be said that it was the first sin. Not to give such an important document for the popular decision was an act of mistrust towards the public reason. In countries where the ruling party was skeptic towards the integration many proposed to launch national referendum and “shot down” the project this way. Among others Poland and France were the most outspoken opponents of the draft constitution.

After many successful ratifications it was rejected by two referenda in France and the Netherlands and because of that the process implementing change was stopped (Hobolt, 2006). In both cases the public campaign informing the public about the true value of the constitution failed to deliver crucial information. In both cases the citizens voiced their lack of confidence in ruling elites more than mistrust towards the proposed document. That is a norm in public deliberations that true issues are just a background for the underlining political turmoil. In any case the revival of the document is postponed indefinitely against all the efforts undertaken by each new EU presidency.

After the rejection the ideas for the renewing this model are diverse. From writing the whole document from scratch to changing some articles and to eradicating the whole idea and going back to Intergovernmentalism. The opposite propositions are in fact two divergent ideas for Europe itself. One is moving us towards the post-state reality acknowledging that certain problems (terrorism, climate change, poverty) are too big for nations and to complex for handling by the inefficient international organizations. New problems need new solutions and new constitution would legitimate this power transfer to the new level. The idea reversing the process and moving us towards the independent but interdependent states needs a document not to move up but to simplify and unify the existing body of laws. In reality the proposed version would do both things at the same time.

The main rationale for this treaty proposing constitution was to simplify and reform the decision making process in ever growing Union with 27 members or more. But not only that. The treaty introduced for the first time the official motto, an anthem and a flag which makes it more similar to any other state than to any other intergovernmental organization. The Constitution would have also reiterated crucial principles of the way the EU functions. The principle of conferral (all EU competences are conferred on it voluntarily), the principle of subsidiarity (governmental decisions should be taken at the lowest level possible); the principle of proportionality (the EU may only act to exactly the extent that is needed to achieve its objectives); the primacy of EU law (in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws). These were not new but with the binding force of a Constitution they would be empowered to the new extent. The treaty would secure the legal personality of the EU, would guarantee new competences, would simplify Byzantine texts of legislation and would introduce for good the qualified majority voting.

The symbols, which were introduced by the proposed draft, are much more than it may seem. They are consolidating and strengthening the popular side of the EU. The symbols are to rally around, they give the feeling of unity and identity where the language and culture are not sufficient. It is not an accident that in the USSR people were united around the glorified leaders and then Americans are pledging allegiance to the flag. Large entities need those non-material/material artifacts for the solidification of the citizenry. What seems obvious in small communities: the same language, spatial proximity and unity of interests is much more complex in large states. Without unifying symbols they would be doomed to partition.

Another important feature of the Constitution was the enumeration of the values on which the foundation of the Union are established. In the very first articles the legislators are referring to human dignity, freedom, democracy, equality, the rule of law, respect for human rights, minority rights, free market, pluralism, tolerance, justice, solidarity. The Union is searching for the commonalities among divergent traditions to consolidate the Euro-nation and give it the rationale for existence.

This is the most crucial feature of the Constitution of all. One document which tries to establish the idea for all Europeans that they live in one entity which is or will be a nation state like. It was due to change the whole relationship between the EU institutions and the public. To that point the institutions have been living in the realm of intergovernmental relations with little or no contact with general public. Not like any other state the EU does not handle the issues of healthcare, safety, and social security funds, issues which are the most important ones for the average person. Constitutions tried to reach down to the commoners and connect with them in a state like manner. During the long evolutionary process the “treaties have been constitutionalized and the Community has become an entity whose closest structural model is no longer an international organization but a denser, yet non-unitary polity, principally the federal state” (Weiler, 1998:12). However the state has strong legitimacy rooted in the tradition, symbols and history. Political structure of democratic European states gives direct control to the public over almost every step in the legislative process. The longer is the legitimacy chain the thinner is the fabric of democracy (Brunkhorst, 2003). As an post-state entity the EU has major problem with sustaining its legitimacy. It used to derive it from the elite, futuristic project but this form exhausted itself. Constitution would try to reach down to the voice of average citizens and to their needs.

In the process of European integration more and more crucial functions of national governments are transferred to the central Brussels level. Usually it is with the concurrent responsibility between member states and the Union but recently the exclusive Union responsibility is more visible. Certain functional boundaries were moved up and public connection might have been lost in the process. Now the international trade, environmental protection, consumer protection and immigration comes exclusively into the EU responsibilities. This problems from the functionalist point of view are much better dealt with on the central level than national one but the popular opinion is that what is going on in the summits of power has little in common with the interest of an average person or even worse it is against their interest.

Democratic deficit

All large forms which are extending their functional scope are doomed to distance themselves from the subjects, which in this case are the citizens of the member states. This process “does not simply diminish democracy in the sense of individual disempowerment, it also fuels the separate and distinct phenomenon of de-legitimation. Democracy and legitimacy are not coterminous. (Weiler, 1998:265)” The problem of democratic deficit was widely discussed in the reference to the EU by many scholars. The most important feature of it is the undermining of the consolidation process which cannot gain support from public which feel that has nothing to say about the way the community should go. But the democratic control is not as low as many would like to believe. In the EU normative space exist direct and indirect democratic accountability. The first one through the European Parliament and the second one through elected national officials. Additionally the openness for input from civil society is as big in the EU as in open state systems as in the USA or Switzerland (Moravcsik, 2002). As an entity in creation the EU can use all the best practices towards the wellbeing of democracy. Increasing the input legitimacy and opening the process of decision making the EU tries to alleviate all perceived imperfections. Another feature increasing democratic control is the legitimacy of autonomous technocrats and judges which is derived from reduction of decision-making costs through insulation from another EU institutions which leads to specialization. In the opposite point of view the need for protection of minorities and individual rights which is preserved by undemocratic institutions. Additionally we need to provide majorities with unbiased representation (Moravcsik, 2002) which in multilevel entity is always a challenge.

The treaty was hoped to alleviate the democratic deficit of the European Union. It was said that it did not increase the Commissions’ powers but failed to decrease it either. In the effect it does perpetuate the deficiencies in European system. Commissioners are still chosen by the country and approved by European Parliament and not elected in open election process. As an executive branch it has substantially more power than legislative branch of European institutions. Since it has no direct connection with the electorate the civil pressure is less powerful weapon for the activists than in comparable national governments. On the other hand, the proposed draft changes a lot on the legislative side.

The proposed constitution would enhance the parliamentary scrutiny which in effect lower the perceived democratic deficit by heightening the control of democratically elected representatives. The scope of legislation would be as wide as in case of national parliaments. The treaty would additionally create the position of the President of the Commission elected by the parliament. Besides those provisions there was a number of secondary provisions strengthening the role of national parliaments, giving a right to control over secondary implementation measures by parliament and opening the process to the public. It gives a right to direct contact by petition signed by one million Euro-citizens. The petition have to be than considered by the Commission and might become the part of the body of law in the EU. Changing the optic of responsibility to the elected representatives the relative power of citizens increases. If the chain of power is shorter the pressure exercised by an average citizens has much more power to reach the highest “command posts”.

According to some scholars the European Union was being compared with unfair standards. Moravcsik (2002) argues that EU has been judged either against ideal standards of democracy or compared with national standards and practices, which is unobtainable on higher level. The EU institutions are constrained by checks and balances: narrow mandates, supermajoritarian and concurrent voting requirements and separation of powers which makes is safeguard against overuse of democratic procedures. Nature of EU’s functions justifies lack of direct accountability: central banking, economic diplomacy, low-key affairs in national systems and are often delegated to non-governmental or quasi-governmental actors, if so, the democratic deficit is not a derivative of failures of institutional design but the outcome of nature of policy fields. The EU archives are as accessible as humanly possible. Due to that fact, the policy process is more transparent than in most national parliaments. Another exceptional scholar Giandomenico Majone (1996) claims that EU is a regulatory state. Regulation is about correcting market failures by producing Pareto-efficient outcomes and not about the translating aggregated opinions into the coherent policies. The EU as a body searching for the perfect compromise is not suitable for the pure democratic process where majority preferences dominate the final solutions. If we strengthen the democratic leg of the Union it will cease to produce Pareto-efficient outcomes. In the result the policies will stop being acceptable by qualified majority and therefore the Union will lose its legitimacy.

These scholars are proponents of the uber-national forms of ruling which might be called the enlighten absolutism of deliberative democracy. The source of this line of thought is simple. People does not make rational decisions since they are not able to detect all interdependent factors that render the reality too complex for cognitive ability of human kind. Democratic deliberation is the way out since it can detect best solutions better than political process (Nino, 1996). “Democracy, with a focus on inter-subjective discussion, is the most reliable way of getting people to make impartial, rather than selfish decisions” (Nino, 1996:144). If we leave all decision making process in hands of citizens their decisions would be not only perfect but many times they would be against long-term interest of citizens themselves. So in the best interest of citizens is that there would be an supreme being that would decide what is the best for them. But to secure democratic procedures that being would be constrained by the rule of law. Such being is the constitutional court. Constitutional court in European Union reached the status of the superior to every other court and document. That way the EU become what it is today mostly due to European Union laws slowly overrode the national laws, but its power are exceeding the scope of this paper.

The proposed document would not change the philosophy of the EU’s institutions but would significantly alter certain aspects of its functioning. The most important one would be the search for new legitimation. By so far the EU was more an intergovernmental organization with significant independent institutions which lead the way and shape the agenda. It was a form of quasi state, additional member of the union with the additional vote. In the proposed reform, the EU would gain a new legitimation, directly from the people. It was signaled by the Treaties of Maastricht and Amsterdam but the final step towards securing the popular sovereignty was granted by the Treaty establishing constitution. Popular sovereignty means that those who are subject to laws should be also the creators of laws (Brunkhorst, 2003:17). Increasing the role of the Parliament the EU would strengthen the only body directly elected and therefore would be more democratic. It would reverse the 50 years of being subdued to law but not create it.

Form the start the EU was an elite project which was created according to the best intentions and best perceived interest of the common people but without their direct approval. It was a form of enlightened absolutism. It was aimed against war and poverty and nationalism. The 50 years of constant progress exhausted that formula and now it is time to strengthen the democratic side and ask the people about the direction the community needs to take. Constitution would be the beginning of that road and we all need to understand that without that step progress is uncertain.

Reference list:

Brunkhorst, H. (2003). A Polity without a State? European Constitutionalism between Evolution and Revolution. Arena WP, 14/2003

Fisher, J. (2000). Http:// /Archiv/2000/000512-FromConfederacyto.html

Hobolt, S. (2006:1) Direct democracy and European Integration. Journal of European Public Policy 13:1: 153–166

Majone, G. (1996) Regulating Europe. London

Menéndez, A.J. (2005). Between Laeken and the Deep Blue SeaBetween Laeken and the Deep Blue Sea.European Public Law, pp. 103-43,

Moravcsik, A. (2002). In Defense of the Democratic Deficit: Reassessing Legitimacy in the European Union. Journal of Common Market Studies, Vol. 40, No. 4, 603-624.

Nino, C. S. (1996) The constitution of deliberative democracy. New Haven, Yale University Press.

Weiler, J. H. H. (1998) The Constitution of Europe: Do the New Clothes Have an Emperor? and Other Essays on European Integration.