Neither Constitution, Nor Treaty

This paper reflects on the position of the Constitution for Europe in relation to liberal-democratic theory. While clearly not a Constitution in the strict sense of the term, the Treaty nevertheless provides a potential for future democratic consolidation at the EU level. This requires, however, that the scope of the Treaty is not over-constitutionalised.

ARENA Working Paper 08/2005 (pdf)

Agustín José Menéndez

The Constitutional Treaty of the European Union cannot be said to be a Constitution in the same sense that the term is generally used in most European countries. It is not a Constitution in the same sense that the German, Italian or Czech constitutions. This is mainly so because neither the procedure through which it was elaborated, not itscontents, comply with what deliberative democracy requires and expects from a constitution-making process and its outcome. On the one hand, the European people or peoples played almost no role in the signalling of the constitutional moment. The Laeken Convention did not have much of a relationship with European general publics, and it could only marginally exceed its own mandate of preparing the ground of the labours of the IGC. The IGC remained a secretive and diplomatic event, almost completely divorced from European publics. On the other hand, the Constitutional Treaty is unlikely to ensure the full democratic character of European Union laws. By means of assigning constitutional status to all the four parts of the Constitution, the Convention and the IGC give rise to a serious risk of over-constitutionalisation, which would result in a closing of the political space open to European and national legislatures. Moreover, the Constitutional Treaty only marginally improves the position of the European Parliament in the law-making process. Moreover, the Constitution consolidates and amplifies the unbalance which prevails between the simplified lawmaking procedures on issues related to the actual construction of a single market, and the extremely demanding procedures, with multiple veto points, which apply to marketcorrectingmeasures. This is amplified by the reinforced protection which the Draft Treaty offers to economic liberties, and values associated to them (such as price stability). All this entails that the Constitutional Treaty is not the democratic constitution of the European Union, and it cannot be considered on a par with nationalconstitutions. Having said that, the Constitutional Treaty is a further and major step in the process of European integration. By consolidating the primary law of the Union, by its modest but relevant substantive reforms, the Constitutional Treaty prepares theground of a future democratic constitution-making process.

Tags: Constitution for Europe, deliberative democracy, legitimacy, normative political theory
Published Nov. 9, 2010 10:52 AM