Constitutionalizing the European Union - More than a Sense of Direction from the Convention on the Future of Europe

Fordham International Law Journal, Dec 2002

This Article discusses the latest episode in the history of one of the European Union. Part I provides an overview of the integration project. Part II highlights the significance of debating the future of Europe. Part III presents the vehicle of the European Convention. Part IV analyses selected constitutionalizing themes offered in Monsieur Giscard's blueprint. Finally, Part V offers findings and perspectives.

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Constitutionalizing the European Union - More than a Sense of Direction from the Convention on the Future of Europe

FORDHAM INTERNATIONAL LAWJOURNAL Fordham International Law Journal - 2002 Article 2 Copyright c 2002 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj Constitutionalizing the European Union More than a Sense of Direction from the Convention on the Future of Europe Markus G. Puder This Article discusses the latest episode in the history of one of the European Union. Part I provides an overview of the integration project. Part II highlights the significance of debating the future of Europe. Part III presents the vehicle of the European Convention. Part IV analyses selected constitutionalizing themes offered in Monsieur Giscard’s blueprint. Finally, Part V offers findings and perspectives. Markus G. Puder** INTRODUCTION When the Convention on the Future of Europe ("European Convention") officially inaugurated its future-of-Europe deliberations on February 28, 2002, at 3:00 pm in the Plenary Hall of the European Parliament, a new chapter in the making of Europe was solemnly opened. Only eight months later, on October 28, 2002, the President of the European Convention, the former Pr6sident de la R6publique Franaise, Val6ry Giscard d'Estaing, affectionately known as "VGE" among the acronym-enamored French, presented a preliminary draft of a constitutional treaty proposing to push the European Union ("EU") toward the most ambitious reorganization in its young history.' Despite the rumblings about the initial activities of Monsieur Giscard, who, in true allegiance to the maxim noblesse oblige - in his case, nobility by sword 2 - fervently focused on salary matters and work* The views and the translations of foreign terminology offered in this Article are strictly those of the author. All translations from foreign languages are done by the author, unless otherwise mentioned. All foreign sources, including laws, court rulings, papers, dissertations, and internet sources, are on file with the author, unless otherwise noted. The Article expands on a faculty presentation made at the McGill University Faculty of Law, Montreal, Canada on January 27, 2003. Since the original presentation was made on the birthday of Wolfgang Amadeus Mozart, the author hopes that a healthy dosage of Mozart Effect permeated the drafting stage of this Article. ** Markus G. Puder is a researcher and attorney in the Environmental Assessment Division of Argonne National Laboratory, Washington, D.C. office. He is also an adjunct professor of law at the Georgetown University Law Center. His education includes: First and Second Legal State Examinations (Ludwig-Maximilans University, Munich, Germany), LL.M. (Georgetown University Law Center), and Ph.D. in Law (Ludwig-Maximilans University). Dr. Puder is currently a member of the New York State Bar and the U.S. Supreme Court Bar. 1. Praesidium of The European Convention, Preliminary Draft Constitutional Treaty, CONV 369/02 (Oct. 28, 2002) [hereinafter PDCT]. See alsoThe European Convention, Summary Report of the PlenarySession, CONV 378/02 (Oct. 31, 2002) [hereinafter PDCT'Summary Report]. ing conditions,3 the new body with the ominous label has sent a resounding signal of political leadership.4 This Article discusses the latest episode in the history of one of the most audacious experiments in governance ever launched since the Philadelphia Convention that passed the U.S. Constitution. Part I provides an overview of the integration project. Part II highlights the significance of debating the future of Europe. Part III presents the vehicle of the European Convention. Part IV analyses selected constitutionalizing themes offered in Monsieur Giscard's blueprint. Finally, Part V offers findings and perspectives. I. OVERVIEW OF THE INTEGRATION FRAMEWORK The following description of the current framework of governance subsumed under the roof of the EU is intended to establish the baseline for approaching the finality deliberations in general, and Monsieur Giscard's blueprint in particular. The overview presents the current integration architecture, the process levers of integration, and the challenges associated with molding the integration project into a chiseled notion. A. Snapshot: The Three-PillarArchitecture of the European Union The framework of the EU currently displays a Greek temple built on three thematic pillars that correspond to different integration depths and governance modes.5 The First Pillar comprises the foundational European Communities: the European Community and the European Atomic Energy Community (collectively "Community").' Within the Community dimension, FORDHAM INTERNATIONAL LAW JOURNAL which covers the civilian nuclear sector and general economic integration, autonomous institutions independent of the Member States manage the government process.7 The lawmaking prerogatives are allocated within the Community's institutional triangle. The European Commission embodies the permanent administration, in addition to exercising legislative and quasi-judicial functions.' The Council of Ministers, which consists of the government delegates from the Member States, holds key legislative and appointment prerogatives.' The European Parliament exercises legislative functions and political supervision."' While directly elected by the Europeans, the membership of the body is not proportional in accordance with the democratic principle of population sizes, but is weighted in favor of the smaller countries.'' After the European Commission provides the initial draft, the Council of Ministers and the European Parliament, in more and more cases coequally, work out the final version. '2 Decision-making within the Community triangle is, in most cases, no longer predicated upon unanimity. The judicial review in the Community system falls to the European Court ofJustice and the Court of First Instance."3 Budgetary control is provided by the Court of Auditors.' 4 The Community approach of endowing independent institutions with real sovereign powers that go beyond the consensus-oriented mechanics prevailing in international organizations has been touted as supranational.' 5 In contrast to the Community's method of governance, the intergovernmental Second Pillar's Common Foreign and Security Policy and the Third Pillar's Police and Judicial Cooperation in Criminal Matters are still basically controlled by the Member States and the national veto.' The overall Three-Pillar construct functions if the institutional triangle operates smoothly and liaises effectively with the intergovernmental fora and players. These include not only the European Council, the summit institution of the EU bringing together the Heads of State or Government and the President of the Commission,' v but also the Member States proper. If, on the contrary, the triangle gets bogged down or individual Member States proceed to slam the brakes, then the whole integration system comes to a grinding halt. B. Coordinate System: The Two Axes of Deepeningand Widening Projected against a time line, the integration process exhibits two axes: deepening and widening. Deepening refers not only to the transfers of sovereign powers from the Member States to the Community plane, but also involves moving fields into progressive policy coordination under the Second and Third Pillars of the EU.' Over the last five decades, the Member States have amended the institutional, procedural, and substantive contents of the relevant treaties. Grand treaty revisions are accomplished through a treaty-based process of international conclusion and domestic ratification." Since the construction of the Foundational Communities, four major revision thrusts have occurred. 20 Despite ups and downs, the integration project FORDHAMINTERNA77ONAL LAWJOURNAL has evolved from a trade zone to a single market with a common currency. A Community bridge allows for folding the remainder of the Justice and Home Affairs into the Community Pillar.2 ' And, by name, a more pronounced European Security and Defense Policy has been launched.2 2 The political gravity field created by the implementation of the euro, the persistent unemployment plaguing the national economies, and the recurring needs to avert against and respond to domestic crime and violence as well as external conflicts, will only accelerate the efforts to achieve the envisaged European space of prosperity, safety, security, and solidarity. 23 Widening refers to the spatial dimension of integration.2 4 In terms of territorial applicability of the treaty framework, the integration club has grown from six to fifteen countries. Belgium, France, Germany, Italy, Luxembourg, and the Netherlands form the original six.25 Four rounds of enlargements have added another nine: Denmark, Ireland, and the United Kingdom ("UK") in the first round; Greece in the second; Portugal and Spain in the third; and Austria, Finland, and Sweden in the fourth.2 ' As a result, the EU encompasses a geographic area from Scandinavia in the North to the Mediterranean Basin in the South, and from the Atlantic Ocean to the Heart of the ConOct. 2, 1997, O.J. C 340/1 (1997) [hereinafter Treaty of Amsterdam]; Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European Commnnities and certain related acts, Feb. 26, 2001, O.J. C 80/1 (2001). 2 I. TEU, supra n.5, art. 42. See Anke Gimbal, Die lnnev- undJustizpolitikder EU nach Atruterdam, in AMSrERDAM IN DER ANALYSE 146 (1998). The transfer procedure is highly complicated. While it has never been invoked, the existence of the bridge suggests that at some point, the Third Pillar will be completely folded into the Community framework. Id. penhagen European Council, Conclusions of the IPresidency7-8 (2002), available at http:// europa.eu.int/council/off/conclu/ [hereinafter Copenhagen Presidency Conclusions]. 23. Werner Weidenfeld & Josef janning, Europas Zukunfsf ihigkeit - Herausfirderungen, Grundlagen, P1.e)ektiven 7-11 (CAP Working Paper, Dec. 2001). 24. The legal procedures and criteria for accession are contained in Article 49 of the EU Treaty. It stipulates a network of international treaties between the incoming countries and the extant Member States. Ratification must occur in all contracting states. EU Treaty, art. 49. The legal requirements have regularly been supplemented by political criteria. See Kairolina Ristva, The Legal Aspects of European Union Enlargement and the Balkan States 41-51 (unpti blished supervised elective research project). 25. DAVI A.O. EDWARI &RoBE I C. LANE, EUROI'AN COMMUNIY LAw 3-4 (1999). 26. Id. at 6, 13. tinent.2 7 In light of Europe's economic and political stability, thirteen countries are vying for entry.2" With a large convoy of ten countries - Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia - the treaty of accession was signed on April 16, 2003.29 They are slated for accession before the next elections to the European Parliament in 2004. Two countries, Bulgaria and Romania, will continue the accession negotiations.3 o They are expected to enter in 2007.31 One country, Turkey, has not yet moved beyond candidacy status. A decision relative to opening accession negotiations will be taken in late 2004.32 Upon accession of all candidates, the magnet EU is on track to boast twenty-eight member countries, push its external borders to the Commonwealth of Independent States and the Near East, and break new ethno-cultural grounds. 3 C. Notional Elusiveness: The Futility of ClassificationAttempts Despite the plethora of political and legal notions offered in the literature and judicature to capture the construct somewhere in the continuum between regional international organization and federal State,- 4 categorization attempts seem futile FORDHAM INTERNA77ONAL LAWJOURNAL because the multi-level network of European integration represents a moving and morphing target. Indeed, the most salient characteristic of the EU system stems from the open-ended process dynamics that continue to envelop and carry the integration project and go beyond the customary political, socioeconomic, and cultural changes experienced by any organization. 5 The European edifice was not constituted with a big bang based on one final foundational plan, but derives from incremental, carefully scoped progressions, and long consolidation periods."' The integration treaties that mark stages on the road to achieving an ever-closer Union, 7 expressly embrace gradualism pursuant to the Jean Monnet method" over constitutionalism, a model track associated with Altiero Spinelli."t ' In retrospect, this method has thus far provided the recipe for success to resolve conflicting interests, concepts, and goals among the Member States, while not alienating the public at large to a degree of paralysis. D. Obsemvalions Viewed over an extended period of time, the integration of Europe has made great strides. Yet, the series of "mini bangs" has also led to more complexity and less transparency within the evolving framework that now comprises a panoply of treaties, the European Union Treaty, BVerfCE 89, 156 (Maastricht Treaty) ("Saoatenverbindung," or linkage of States)); Wolfgang Merkel, Legtimiitfisiberlegungenzu einem unionsspezifischen Demokratiemodell, in Demokratie und Interessenausgleich in der Europhischen Union, supra n.33, at 27 (Claus Giering et al. eds., 1999) ("part-formed political system"); Leon N. Lindberg & Stuart A. Scheingold, Europe's Would-Be-Polity - Patterns of Change in the European Community (197(0) ("would-be polity"); Thomas Oppermann, Die Europiische Getneinschafl alsparstaatlicheSupervtruktur, Skizze einer Realit/itsbeschreibung, in Fus'rscuFRvr FOR HANS PiER I'SEN 685 (1977) ("parastate superstructure"); Hans-Peter Ipsen, Europaisches Gemeinschaftsrecht (1970) ("framework sui geneeris"). 35. Forschungsinstitut der Dentschen Gesellschaft ffir Auswdirtige Politik, Weltpolitik. net, EtLropoiische Union - Einfilhning, available at http://www.weltpolitik.net/sach gebiete/eu [hereinafter Weltpolitik.net]. 36. Id. 37. TEU, supra n.5, Pmbl., art. 1;EC Treaty, supra n.6, l'mbl. 38. Jean Monnet, A Ferment ofChangefe, 1J. COMMON MwiT. STUD.203, 211 (1962); see also Centro Italia Europea - Eurit, Gand-Place Europe, Jean Monnet - His Life and Work, available at http://www.eurplace.oig/federal/monnet.thml [hereinafter Monnet, Life and Work]. For an in-depth discussion of functionalism, see Renaud Dehousse, Rediscovering Functionalism (jean Monnet Working Paper, Symposium, July 2000). 39. Monnet, Life and Work, supra n.38. protocols, and declarations as well as numerous re- and overwrites. II. SIGNIFICANCE OFDEBATING THE FUTURE OFEUROPE Since European integration has been achieved through successive, open-ended construction phases, the deliberations on the future of Europe add the proverbial light at the end of the tunnel. Such discussions, albeit under different labels, are not a new phenomenon throughout the history of the integration project." At present, most actors and commentators employ the phrase "finality debate" to shift the visor from gradualism towards constitutionalism, or, in other words, to move into a process of constitutionalization. Independent of terminology, the discourse about the ultimate destination of the integration process raises at least four significant, cross-cutting promises and challenges for shaping the European integration process. A. Break with the Conventional Templates of the Past The very launch of these deliberations signals the intent to dispense with the traditional process of intergovernmental conferences, patchwork revisions, and lengthy consolidation phases that seem outmoded for a growing and deepening Europe. In terms of substance, the deliberating parties pledge to pursue the answer to the question relative to what the Europeans are going 40. Since the establishment of the European Coal and Steel Community in 1951, the reflections upon a European finality have been documented in numerous drafts and reports authored by European institutions as well as national political parties, foundations, and private citizens throughout the foundational, the reignition, and the maturity periods of the integration project. They include, among others, the Draft Treaty for a Statute of the European Community (Jean Monnet/Paul-Henri Spaak, 1953), the Spinelli Draft (Altiero Spinelli, 1984), the work of the Confederation europ~enne (Franqois Mitterand, 1990), the Hennann Report/Constitutionof the European Union (Fernand Hermann, 1994), and the Freedom in Responsibility Manifesto (Christian Democratic Union, 1994). While ultimately not implemented, these efforts proved, at least partially, boosters in their own way. In 1957, the suite of the community treaties was completed. In 1986, the SEA reinvigorated the idling integration engine. And in 1992, the TEU conceived the Three-Pillar architecture of the EU. Forschungsinstitut der Deutschen Gesellschaft fNr Auswirtige Politik, Weltpolitik.net, Zum Stand der Diskussion um eine europadische Verfassung, available at http://www.weltpolitik.net/policy-forum/article/252.html. See Sonja Volkmann-Schluck, Die Debatte um eine europdische Verfassung, in LEITBIDER - KONZEPrE - S-rRA'EGIEN 12-16 (2001). In addition, the author identifies three phases in the post-1999 constitutional debate: (1) from the beginnings of the German Council Presidency to Joschka Fischer's Humboldt speech; ( 2 ) from Fischer's speech to the Nice summit; and ( 3 ) the launch of the post-Nice process. Id. at 16-22. to build - something that one can see, smell, taste, hear, and feel. In more concrete terms, the initiation of end games calls for the insertion of the last brick into the integration project: finalitgpolitique,or, full political integration. 4 ' B. Move from Permissive Consensus to Positive Identification and Loyalty Debating the future of Europe signals the intent of all players to counter the pervasive exhaustion of the permissive consensus among the governed.4 2 The path towards finality requires avoiding the errors of the past that led to major flash points of crisis.4" Beyond the importance of lessons learned, a new culture of bright sunlight, public discussion, and full communication loops holds the promise of finally relinquishing the old recipes of polity-building by stealth and elite bargaining that have for so long dominated the integration project." Finally, this also means that transparency and openness must be deemed as important as effectiveness and efficiency relative to forging a stronger identification and loyalty within the envisioned framework. Overall, this process of sparking a more general interest among the peoples of Europe4 5 demands from discussants, at a minimum, the active pursuit of togetherness." C. Vet the Lingering Democracy and Legitimacy Questions Finality involves a sincere attempt at conceptualizing for the 2003] European integration order, the enabler of all governance or constitutionalizer - ex nihilo or from the extant acquis. In this realm of organizational theory and philosophy, Sieyos and Schmitt have offered the couplet of pouvoir constituant and pouvoir constitu, Spinoza has paired natura naturanswith natura naturata, and Kelsen has used the notion of the basic norm (Grundnorm).17 The notions hark back to the duality of constitution-giving and constitution-managing, and, transcended onto the European plain, a convergence on resolving the alleged European democracy and legitimacy deficits. Independent of whether one construes the two as distinct or overlapping in countless permutations, democracy and legitimacy are dynamic and alive.48 They are ideal conditions requiring continuous approximation, yet seem forever incomplete and incapable of completion. Admittedly, the distillation of a common core with respect to democracy and legitimacy faces the challenge of disparate cultures of public law and administration in Europe.4 9 The nucleus of democracy is expressed as the congruence of the governor and the governed." All bets remain open with respect to translating this equation into the design of the European institutional order, since finding the sovereign people residing prior to and over, within, and next to the embodiment of governance,' and construing the tractor beam between the will of the sover47. For an-indepth discussion and further references, see Andreas Kalyvas, Schmitt and the Categories of the Political: Carl Schmitt and the Three Moments of Democracy, 21 CARDOZO L. REV. 1525 (2000). 48. Miller, supra n.34, at 1778, n.3 ("democracy and legitimacy are not co-terminous"); Merkel, supra n.34, at 28-31 (describing three dimensions of legitimacy: (1) political community and demos; ( 2 ) democratic institutional order; and ( 3 ) efficiency); Stephan Mazan, Das foderative Prinzip in der Europdischen Union, in 19 SCHRIFTEN ZUM EUROPAREC-T 36-37 (1996) (using the following distinction within the overarching subject term of "legitimacy": (1) material legitimation that relates to safeguarding order and peace, individual and social freedoms, and welfare; and ( 2 )formal legitimation that derives from democratic equality and rule of law); Gr.inne de Brca, The Quest for Legitimacy in the European Union, 59 MOD. L. REV. 349 (1996) ("the power of the [S] tate is legitimated through the democratic process"). 49. Moller, supra n.34, at 1778 (observing that in Britain, sovereignty resides in the Crown in Parliament, while France worships at the altar of the sovereign State, and Germany defers to the Constitutional Court as the final arbiter). 50. See Abraham Lincoln, Address at Gettysburg, Pennsylvania (Nov. 19, 1865), in ABRAHAM LINCOLN, SPEECHES AND WRITINGS 1859-65, 536 (1989) ("government of the people, by the people, for the people"); see also CARL SCHMIDT, VERFASSUNGSLEHRE 228, 234 (1989) ("the identity between the dominant and the dominated, the ruler and the ruled, the one who gives orders and the one who obeys them"). 51. Kalyvas, supra n.47, at 1529-30 (the three moments of democracy). FORDHAMIAJIERNATIONALLAWJOURNAL eign and the government, represent the central challenges. One might intriguingly enquire about the significance of a difference between people (demos) and peoples (demoi), and search for a formula beyond the triangle of people-State-constitution. Peoples plus Nation-States equals Europe could serve as a starting point or working hypothesis. In addition, invoking the image of a chain, the appropriate numbers and types of linkages between the sovereign and the government will have to be weighed. This relates to the criticism that the interposition of the Member States and their executive branches within the current framework has led to a pronounced executive tilt in the EU, also referred to as the democracy deficit.5" While it has generally been accepted that the quest for legitimacy must go beyond Weber's triad of legal, traditional, and charismatic authority, as well as the minimal standard of the functionalist, success-based material self-legitimization, 3 the debating parties will have to resolve whether the desired objective involves nothing short of existential legitimization through a political constitution for Europe. Within the overall mix, answers with respect to identity-forging and loyalty-building will have to be offered. The finality debate promises to vet these existential questions. D. Enhance Europe's Posture in the Global Arena The output feature of the integration order relates to its effectiveness and efficiency.54 The recent rifts within Europe over the stances of Member States and candidate countries within international organizations have painstakingly revealed rather unsettling performance deficits. In this light, the future-of-Europe deliberations must reignite the spirit that had prevailed in the early 1990s when the implementation of a single market pro CONSTTUTIONALIZING THE EUROPEAN UNION gram was accelerated. The key borderless areas benefiting from a major boost include trade, the environment, research and development, and internal and external security. 55 In the final analysis, only a reinvigorated Europeanization will allow for pooling resources, avoiding redundancies, and, above all, speaking with one voice. E. Observations Within the finality debate, the constitutionalization theme is omnipresent because it involves the very heart and fiber of building a European organism through a marriage of politics and the law. The deliberations promise to spark the political process and shape legal vehicles in pursuit of a genuinely accepted governance framework. Conducting this discourse in sincerity requires political statesmanship, legal imagination, and civic engagement. This calls on politicians to be visionaries, inspirers, and doers. Lawyers are challenged to seek new horizons beyond the State-international organization dialectics. Most importantly, the citizen participant must not remain on the sidelines, but should become vested in the discussions with the perspective to provide actual input. The finality debate appeals to politics and the law not just as science disciplines, but as high art in the broadest sense. 1II. ANATOMY OF THE EUROPEAN CONVENTION The European Convention was created as a conduit for shaping the constitutionalization theme triggered through the finality debate. The novelty of the body warrants a closer look at its genesis, membership, organization, procedure and working methods, and schedule. A. Genesis The Nice Intergovernmental Conference, in Declaration Number 23, launched the so-called post-Nice process, however, it stopped short of charging a specific reform vehicle distinct from the traditional grand revision template. 5" The Laeken Dec55. Weidenfeld &Janning, supra n.23, at 7-10. 56. Treaty of Nice, Declarations Adopted by the Conference, Declaration on the Future of the European Union, 0.J. C 80/1, 85-86 (2001) (identifying four topical areas: (1)the division of powers between the EU and the Member States, including their FORDHAMINTERNA TIONAL LAWJOURNAL laration, which on the substance formulated roughly 60 reform questions, tasked a convention to broadly and openly "consider the key issues for [Europe's] future development and . . . identify the various possible responses. '57 The composition of the convention was to reflect the multi-level, interwoven, and polycentric networks of public and private actors, institutions, functions, jurisdictions, and resources under the framework of the EU. currently subsumed B. Membership The membership of the European Convention features a Symphony of a Hundred-And-Five: 5' a President (Valkrie Giscard d'Estaing), and two Vice Presidents (Giuliano Amato and Jean-Luc Dehaene, the former Prime Ministers of Italy and Belgium, respectively), twenty-eight government representatives from the Member States and candidate countries (one each), fifty-six delegates from the national parliaments of the Member States and candidate countries (two each), sixteen Members of the European Parliament, and two representatives from the European Commission. In addition, the full members have one alternate each."' Another thirteen observer-invitees represent political subdivisions; ( 2 ) the role of the national parliaments in the integration process; ( 3 ) the legal status of the Fundamental Rights Charter; and ( 4 ) the simplification of the integration treaties); see also Puder, supra n.5, at 82-83. 57. Laeken European Council, Conclusions of the Presidency (2001) Annex 1, at 7, available at http://europa.eu.int/council/off/conclu/ (posing questions with respect to four thematic blocs: (1) allocation and delineation of competences; ( 2 ) simplification of instruments; ( 3 ) more democracy, transparency, and efficiency; and ( 4 ) path toward a constitution); see also Claus Giering, Die Verfassung im Visier, Europdische Zeitung 01/2002, available at http://www.cap.uni-muenchen.de/aktuell/medien/2002/2002Ola.htm; Olaf Wittrock, Gipfel-Fazit: Europa vor der Revolution, available at http://www. europa-digital.de/aktuell/dossier/nach 1109/nachlaek.shtml. 58. Ulrike Gurot, Aktueller Stand der Diskussion im europdischen Verfassungskonvent 3 (Gemeinsame Vortragsveranstaltung der Deutschen Gesellschaft far Auswirtige Politik in Kooperation mit dem Zentrum ffir Europaische Integrationsforschung, Apr. 30, 2002) (emphasizing that 25% of the delegates are women). But seeJo SHAW, PROCESS, RESPONSIBILITY AND INCLUSION IN EU CONS-ITITUTIONALISM - THE CHALLENGE FOR THE CONVENTION ON THE FUTURE OF THE UNION 11 (2002) (diagnosing a paucity of women and party imbalances). 59. For a visually appealing compilation of the organization and composition of the European Convention, see Olaf Wittrock, Wer kommt in den Konvent?, available at http://www.europa-digital.de/aktuell/dossier/konvent/konkand.shtml. 60. For the tables of members and alternates, see The European Convention, Composition, available at http://european-convention.eu.int/Static.asp?lang=en&Content= composition. two advisory Community bodies - the Economic and Social Committee (three) and the Committee of Regions (six), the social partners (three) and the European Ombudsman.6" Moreover, the European Convention Forum operates as a public participation or stakeholder involvement venue folding civil society and other interested individuals into the debate.6 2 Finally, in the summer of 2002, a three-day European Youth Convention brought together 210 young people between the ages of eighteen and twenty-five years to discuss the future of Europe.6" C. Organization The European Convention features a twelve-member bureau or Praesidium, which is to give the impetus to the proceedings. 4 The autonomous General Secretariat of the European Convention organizes the meetings and provides logistical support."' The overall budget stands at 10.5 million Euro.6 6 D. Procedureand Working Methods The President and the two Vice Presidents hold a weekly l9te-d-tele.67 The Praesidium meets every other week behind closed doors on the premises of the European Parliament in Brussels.6 8 A public Plenary Session is convened roughly every three weeks." ' All documents are available to the public."' The speaking time has been limited to three minutes, creating a sense of pragmatism.7 ' "Consensus-building" is the magic buzzword for avoiding formal and contested vote counting.7 2 Working Groups composed of members of the European Convention were launched in June 2002 to explore topical themes and issues more closely, and to generate detailed opinions.7" Their number has increased from originally six to meanwhile eleven." At the end of each Working Group meeting a summary is published. 75 Moreover, ten Working Groups have meanwhile published a final report.7 " Numerous contributions and written interventions by individual members, which are circulated to all their colleagues, have been released into the public domain.77 Finally, a first discussion circle, suggesting more freeflowing deliberations, was launched.78 E. Schedules The European Convention's proceedings, scheduled to run from February 2002 through June 2003, are to unfold in three stages: (1) a listening phase - ascertaining the expectations and needs of the Member States, their governments and parlia2003] ments, and the European society; ( 2 ) a deliberating phase comparing and assessing the various opinions offered on the various reform topics; and ( 3 ) a proposing phase - synthesizing and drafting proposals. 9 Following the third phase, the proposal is relayed to the intergovernmental conference envisioned for the time frame between November 2003 and April 2004.8" In other words, this process should be concluded well before the elections to the next European Parliament in 2004. Others already foresee the signature of a new Treaty of Rome at the occasion of the summit concluding the Italian Council Presidency in December 2003.81 F. Observations The Laeken formula for a convention was pushed by those seeking stronger parliamentary and public participation components. Moreover, it reflects a general fatigue with the traditional summits and the hustle and bustle of the bazaar in the kasbah.8 2 The convention format differs from previous vehicles used in the history of intergovernmental conferences." It is neither a gathering of special representatives, delegates, and envoys converging in quasi-diplomatic privacy,8 4 nor a selection of wise men and women deliberating aloofly, 5 nor a parliament engaging in constitutional revision.8 6 Rather, the European Convention features a group of men and women seeking "to propose a new framework and structures for the European Union, which are geared to changes in the world situation, the needs of the citizens of Europe and the future development of the European Union. 8 7 However, as the convention process has been maturing, it has become clear that the Member States, not so eager to totally hand away the reigns of control, have resorted to more subtle means of influence. This diagnosis is reflected in the choice of a troika of elder statesmen chairing the European Convention. 8 Moreover, the government delegates hold two thirds of the Praesidium, while the fifty-six parliamentarians account for the majority in the overall body.8" The preliminary rules of procedure were heavily tilted towards the President with respect to determining the agenda, the length of the debates, and the point in time for sittings."0 On the other hand, the Praesidium has had to back down on several occasions. 1 The working groups were launched against the will of the Chair.9 " In a similar vein, the candidate States had to win their guest-participant status in the Praesidium and the emancipation of their official languages." Finally, many view the lapse of time between the availability of the expected proposals and the decisive intergovernmental conference as a firewall allowing the ball to sit in the court of the Member States for a while. 4 IV. MONSIEUR GISCARD'S BLUEPRINT The Preliminary Draft Constitutional Treaty presents a first cursor of the European Parliament) led the effort of drafting a Treaty for the European Political Community). 87. Europa, EuropeanCommission, Audiovisual Libray,European Convention - Album, available at http://europa.eu.int/comm/mediatheque/photo/select/conven tion3_en. h tin. 2003] CONSTITUTIONALIZING THE EUROPEAN UNION pragmatic product marking the European Convention's entry into the final proposing phase.9 5 After describing the layout, the major reform themes central to a constitutionalization drive will be analyzed. A. Layout 1. Designation While the subject line of the cover note from the Praesidium to the Convention reads Preliminary Draft Constitutional Treaty,9 6 the attached body of the document titles Treaty Establishing a Constitution for Europe.9 7 One might argue that "Constitutional Treaty" emphasizes the continued anchoring of the integration project in the international law basis,9 8 whereas "Constitution for Europe" intimates finality through a constitutional leap.9" The designations Basic Treaty, merely bundling provisions, 1.... Constitutional Charter, invoking the judgments of the European Court ofJustice,"" I or Constitutional Pact, connot95. Monsieur Giscard celebrated the occasion by removing the document from a sealed envelope after having arranged for a personal distribution only at the very beginning of the session. In the Praesidium, he even had the text collected again at the end of the sitting. See Arne Schneider, Wegmnarkefiir ein neues Europa, availableat http://www. europa-digital.de/aktuell/dossier/konvent/fahrplan.shtml. The proposing phase has been characterized by the rise of numerous constitutional drafts offered by players inside and outside of The European Convention. See CAP, EU-Reform, EU-Konvent, Verfasungsentwfirfe, available at http://www.cap.uni-muenchen.de/konvent/entwuerfe. htm. For a Juxtaposition of the two main parliamentarian constitutional drafts authored by the Brok Group (European People's Parties) and Andrew Duff (Liberals), see Claus Giering, Different Ways - One Target - Convention Members PresentFirstDraft Constitutions, CAP SPOTLIGHT 2002/08 (2002) (providing a summary side-by-side in table format). A rather copious working document was prepared under the aegis of the European Commission at the request of President Romani Prodi. See FRANCOIS LAMOUREUX ET AL., FExuSIrLry STUDY, CONTRIBUTION TO A PRELIMINARY DRAr- CONsTITUTION OF TIE EUROPEAN UNION (2002) (offering a comprehensive introductory narrative as well as a proposed document). 96. PDCT, supra n.1, at 1. 97. Id. at 4. 98. Volkmann-Schluck, supra n.40, at 31. See also Immanuel Kant, Perpetual Peace: A Philosophical Sketch (1795) (predicting that states will contractually bind themselves together, like private individuals within the State, which will give rise to a republic of the republics and overcome the state of war of the lawless space). 99. Heuser, supra n.4; Kampfer, supra n.74. 100. Volkmann-Schltck, supra n.40 , at 31. For an example of such a consolidated treaty, see Bertelsmann Group for Policy Research, A Basic Treaty for the European Union - Draft Version for the Reorganization of the Treaties (2000). 101. Les Verts Case, [1986] E.C.R. at 1365. See alsoJ.J. Zwartveld and Others, Case C-2/88, [1990] E.C.R. 3365, 3372; Opinion 1/76 of 28 April 1977, [1977] E.C.R. 758, FORDHAM INTERNATIONAL LAWJOURNAL ing the usage by the European Movement,112 are not offered. 2. Architecture In pursuit of treaty simplification, the eighteen-page draft presents a single consolidated document designed to supplant the extant panoply of treaties and protocols."' It exhibits a trifurcation into a constitutional structure reflecting the convention proposals, an administrative part folding in the policy and action clauses from the existing treaties, and a final part offering general provisions." 4 Once finalized, the constitutional text will boast more than 400 provisions. 11 3. Drafting Method In light of its outline format, the document has already come to be known as the skeleton.""' The constitutional part features ten title headings with a total of forty-six articles." 7 The contents of each provision are a function of the consensus method and the desire to achieve a blueprint rather than a mere batch of options." 8 Emphasis was placed on clarity and readability.""'i In general, more flesh on the bones reflects a stronger sense of consensus.'"' Rudimentary language signals emerging trends, offers choices, or identifies issue areas for further discuspara. 12; Beate Weber v. European Parliament, Case C-314/91, [1993] E.C.R. 1093 (para. 8). See alo Udo di Fabio, A European Charter: Towards a Constitution jbr the Union, 7 Cotum. j.EUR. L. 159, 165 (using the term Charter to describe the Constitution of an association of States). 102. Jean-Claude Piris, Does the European Union Have a Constitution? Does It Need One? (Harvard Jean Monnet Working Paper, May 2000), available (it http://wxv.jean inon netprog,-aim.org/palers/00/000501 ihtml. 103. PDCT Summay Report, sunra n. 1, at 2. 104. See PDCT, supra n. 1, at 2-7; PDCTSumman,Reporl, supra n. 1,at 1-2. 105. Heuser, supra n.4, at 2. Clans Giering, Be/vihrungsproben anf den Weg zur Verassung, Europaische Zeitung 2 (Nov. 2022), available at http://www.cap.unimoenichen.de/aktoell/medicn/2002/2002_l la.htn. 106. See Ian Black, Giscard Unveils DIaft ]or"United Europe", GUARDIAN UNA.siMTE), Oct. 29, 2002; Kristian Kampfer, Die Zehote Plenartagung: Vorentwof einer Verfnssung, die Rolle einzelstaatlicher Padamente und Charta der Grundrechte, available at http:/ /www.europa-digital.de/aktuell/dossier/krnvent/ plenar/ptl 0.shtml. 107. See Black, supra n.106. 108. See Phillippart, supra n.72, at I (advocating "precise recommendations, and not a catalogtue of options"). 109. See PDCT Summary Report, supra n. 1, at 13 (describing the positive reactions among the members during preliminary debate). 110. Id. at 3. 2003] sions. "' The elastic styling of the provisions is intended to allow the Praesidium to successively complete building blocs and present full-fledged draft sections and articles, and thus attain its goal of constructing a whole final draft constitutional treaty before the European Convention adjourns sine die.' 12 B. Reform Themes The principal constitutionalizing reforms thematized in Monsieur Giscard's skeleton include the nature and foundations of Europe, the protection of fundamental rights, the allocation of the competences, and the institutional government. Moreover, other important topics are materializing on the horizon. 1. Nature and Foundations of Europe The assortment of choices floated in Monsieur Giscard's blueprint relative to the official title of the integration framework, signals the intent to articulate a hiatus ushering in a practical re-foundation and solemn re-endowment of Europe.1"' Identifying potential guiding visions (Leitbilder) sets the stage for resolving the logical question that must precede any drive towards a constitution, namely, what it is that shall be constituted. '14 The term "European Community" connects to the beginnings of European integration and the image of a Europe governed by a Table of Prime Ministers and run by an economic government that conducts the political management of the euro in counterbalance to the European Central Bank." 5 The title "European Union" reflects the present structure built around 111S.ee id. For example, the proposal reflects a stronger consensus anong the members on values and legal personality, whereas the language relative to the categories of competences and the injection of suspension and withdrawal procedures represents a first tendency. Choices are floated with respect to the designation of the integration framework and the road to fundamental rights. The installation of Presidencies for the European Council and Commission, and the modalities for the entry into force warrant further disctussions. 112. Id. 113. PDCT, supra n.i, art. 1. 114. See Volkmann-Schluck, supra n.40, at 23 (quoting the former Governor of Saxonia, Kurt Biedenkopf). . 115. See Bertelsmann Group for Policy Research at the Center for Applied Research, supra n.41, at 4 (describing this scenario as a "deepened trade zone" with room for enhanced cooperation among the eurozone countries); Volkmann-Schluck, supra n.40, at 28 (encapsulating the British ideal of Europe as an economic power station). the Community core and the open status quo.'' The vision of the United States as an example for Europe has inspired much euphoria over the past centuries.'" However, in the words of the history major and former Chancellor of Germany Helmut Kohl, who stopped invoking the reference in the early 1990s: "the formula ... leads to error, because anybody who hears this formula immediately thinks . . . of the United States."'"18 The notion of a United Europe, which is favored by Monsieur Giscard, is less fraught with pre-established connotations.' ' The following articles in Monsieur Giscard's blueprint offer more direction. They envision the future Europe as a Union of European States organized on a federal basis,' 2 " and equipped with legal personality.' 2' This sounds reminiscent of Joschka Fischer's speech that had ricocheted throughout Europe in the spring of 2000." ' The German Foreign Minister is now Ger116. See Volkmann-Schluck, supra n.40, at 27 (identifying the Commission, the European Parliament, and the smaller Member States as proponents of this vision); see also Heuser, supra n.4, at 3 (emphasizing that the current name has not only created an identity for the fifteen Member States, but also "elicited a positive integrational dynamism in the accession states"). 117. For an overview of the history of the European unity movement, see WOLFGANG W. MICKEL., ed., Handlexikon der EUropiischen Union XIII-X Ll (1998) (describing, inter (lia,the Pan-Europa Union founded by the Austrian Count CoudenhoveKalergi). 118. For the full 1993 quote in German, see LAUFER & FISCHER, supra n.42, at 22. See also Mazan, supra n.48, at 76 ("no realistic scenario"); Freedom in Responsibility Manifesto, supra n.40 ("des notions telles que... 'Etats-Unis d'Europe' ne sont pas de nature A rendre manifeste le caractire original de la construction juridique europtenne."); Mark C. Anderson, A Tougher Row to Hoe: The European Union s Ascension as a Global Superpower Analyzed through the Anerican FederalExperience, 29 SYRACUSFJ. INT'L L. & CoM. 83, 90-117 (2001) (discussing the presence of themes that led to the rise of the United States of America, while the absence of corresponding features poses obstacles to the European Union's transformation: (1) the common enemy; ( 2 ) only as strong as its weakest link; ( 3 )blank slate; ( 4 ) e plutibus unun; ( 5 ) manifest destiny; ( 6 ) democracy deficit; (7) common defense; and (8) World War II effect). 119. Black, supra n.106. 120. PDCT, supra n.I, art. 1 ("A Union of European States which, while retaining their national identities, closely coordinate their policies at the European level, and administer certain competences on a federal basis"). 121. PDCT, supra n.1, art. 4 ("Explicit recognition of legal personalityof the [European Community/Union, United States of Europe, United Europe]"). 122. JoscilKA FISci-iER, VOM STAATENIUND ZUR FODFRATION - GEDANKEN OBER DIE FINALITAT DER EUROPAISCIIEN INTEGRATION (2000). For the English language version, see JOSCHiKA FISCHER, FROM CONFEDERxcy TO FEIERAC, - TiOUGHITS ON THE FINALI'Y OF EUROI'EAN INTEGRATION (2000). See generally Volkmann-Schluck, supra n.40, at 18-21 (providing contexts and reactions). 2003] many's high-profile delegate to the European The resurrection of federalism, the infamous F-Word which had been exiled in the course of the Maastricht debate, as an organizing principle in the finality deliberations seems stunning. 121 Convention.2 3 The Germans construe federalism as a lever for devolution, whereas the British connect with federalism the rise of a Superstate. 12 Since the two schools have stubbornly proved unbridgeable, the word "federalism" had never entered the treaty system. At present, the European Communities, as opposed to the EU, are endowed with legal personality.'2 6 The conferment of unitary legal personality makes Europe an actor and notary-public on the international scene, signals treaty and pillar consolidation, and spurs greater transparency and identity-building. 127 2. Protection of Fundamental Rights At the time of the Nice Intergovernmental Conference, a Charter of Fundamental Rights of the EU was drafted. 28 The UK has balked at equipping the document with legal force. 129 The British generally oppose the addition of new social rights beyond the already extant European Convention on Human Rights. 3'l However, Monsieur Giscard's blueprint considers it essential that fundamental rights be enshrined in the future constitutional treaty.'' A Union-based avenue' 3 2 and a route FORDHAM JNTEIRNATIONAL LAWJOURNAL through the European Convention on Human Rights ("ECHR") ...are conceivable as complements or alternatives."' The blueprint sketches out three options under the Unionbased avenue: 115 first, an indirect reference to the Charter that stands alone, binding yet sub-constitutional;"m second, a straight reference in the Constitutional Part to another part of the treaty or an annexed protocol;' 7 or third, a full incorporation in the Constitutional Part."," Under any of the three options, the Charter content would not change, the allocation of competences between Europe and the Nation-States would remain unaltered, and the national courts would be competent to hear appeals. 3 9 The Charter Working Group has also been broaching the question of enabling the Union to accede to the ECHR.' 41 Similar to the Union-based route, no new competences for the EU would arise, since the accession would concern only extant fields of EU law. 4' Overall, both avenues promise to enhance the protection of citizens' rights, leave intact the balance of responsibilities, and forcefully assert ethical and moral values within the integration system. 142 Chairman of Working Group I1,Incorporation of the Charter/Accession to the ECHR, Fival Report, CONV 354/02 (Oct. 22, 2002) [hereinafter 2002 Working Group 11Final Report]. 132. PDCT, supra n.1, art. 6, para. I ("The wording of this article will depend on the proceedings of the Working Group of the Charter"). 133. Id. art. 6, para 2 ("Itcould be modeled on Article 6 of the Treaty on European Union"). 134. Many members have articulated their support for considering the incorporation and accession routes as complimentary initiatives. ,See PI)CI' SummaUy Report, supra n. I, at 9; 2002 Working Group 11,Firal Report, supra n. 131, at 12. A smaller group has expressed reservations relative to the ECHR route. See PDCT Summay Report, supra n.], at I. 135. PDCT supra I.la,rt. 6, para. 3. 136. Id. ("either refer to the Charter"). 137. Id. ("or state the principle that the Charter is an integral part of the Constitution, with the articles of the Charter being set out in another part of the Treaty or in an annexed protocol"). 138. Id. ("or incorporate all the articles of the Charter"). 139. 2002 Working Group II, Final Report, supra n.131, at 4-8. 140. Id. at 11-15. 141. Id. at 13-15. 142. The European Convention, FundamentalRights: An Integral Part ojthe Future ConstitutionalTreaty, Points No. 4. For discussions on access to the Court of justice, see 2002 Working Group II, Final Report, supra n.131, at 15-16. 2003] CONST7TUTIONALIZING THE EUROPEAN UNION 3. Allocation of Competences In absence of a Kompetenz-Kompetenz, the powers transferred by the Member States into the Community core are of attribution. "' However, the unsystematized, elastic, and pragmatic handling relative to the seat of a particular action competence, explicit or implied, through formulation of objectives and judicial resolution, was preferred by the treaty framers over a comprehensive and chiseled catalogue. While the former did allow a novel order of governance to move forward, this no longer necessarily rings true for a system that has matured. The blueprint proposes a separate title relative to the allocation of competences.' 4 4 It carves out three tiers of powers - exclusive, 4 5 shared, 4 " and supporting' 47 - scaled along the level of European control and linked up with specific policy spheres of action.'4X Exclusive competences are Europe's very own, including the customs union, the internal market, and the currency union."U" ' Shared powers, exercised in common, involve treatyessential fields with cross-border elements like the four freedoms, the protection of the environment, and social cohesion. 50 Under a supporting mode, Europe does not legislate, but rather promotes and complements, for instance, in the areas of social policy, education, culture, and consumer protection.15 ' The overall approach does seem German. were the first to ask for a clearer division of powers to be laid down in a charter of competences, partly because the sixteen Ldnder feared that European integration was chipping away at their prerogatives. 5 2 The German Constitution embraces a model of vertical federalism sporting a catalogue that divides sovereignty between the federation and the states. 151 The counter-thematic type of action power advanced in the blueprint is almost surprising. The salient provision states that in certain areas, the Member States may define and pursue common policies within the Union framework and according to specific rules. 15 4 The meaning of this clause has yet to be clarified. From its wording, it could signal a resurrection of a Member State margin of maneuver or a silent repatriation of powers. 15 5 The Germans and the British, for example, advocate that agricultural and regional aid should be re-nationalized, since they gobble up most of the EU's budget.5 6 Spain and France strongly oppose such a change. 57 4. Institutional Government The design and prerogatives of the institutional architecture of Europe exhibit a pronounced tilt toward the executive branch rooted in the Nation-State.s The Member States are the masters of the treaties.' 59 They dominate the intergovernmental decision processes and summits.'" Within the suprana2003] tional fold, they enjoy central appointment powers and their delegates make up the chief legislator. 6 ' Finally, implementation of European law is ensured by each Member State. 16 2 In the area of institutional government, the blueprint is notably rough merely throwing out topical headings. 6 3 However, the reforms relative to the Presidency of the European Council, 164 the Presidency of the European Commission,' 65 the Council of Ministers, 166 and the Congress of the Peoples of Europe 167 signal major surgery. While not explicitly stated in the blueprint, this overhaul will interconnect with the future design of the European Parliament' 68 and the role of the national par69 liaments. 1 Conceived as a treaty architect and pacemaker, the European Council retains the character of an intergovernmental body. 17" Although not a Community institution,1 7 1 the European Council has increasingly become the repository for micromanaging and resolving stalled first pillar issues deadlocked in the Community's institutional triangle. The trend of bumping up difficult questions into the European Council has led to overloaded summit agendas. Issues are frequently brokered through packaged deals or along shopping lists. This has given the summit institution de facto prerogatives not foreseen by the treaty system. Similar considerations apply to the increased usage of the open method of coordination under the aegis of the European Council. 712 Further strengthening the European Council through scratching the short-breathed rotational system in favor of a multi-annual presidency, as mooted by Monsieur Giscard, 7 : might be viewed as a recipe for developing a European executive based on intergovernmentalism. Those seeking compensation for a strengthened European Council advocate the creation of a dual or twin presidency by placing the installation of the President of the European Commission into the hands of the European Parliament. 7" The alternative to this Franco-German parliamentary model envisions a presidential track based on the direct election of the President of the European Commission."' The UK opposes both these proposals since stronger reigns retained by the Nation-States are favored.'7 However, making the Commission Presidency accountable to the peoples, directly or through a parliamentary intermediary, promises to strengthen the European Commission's democratic legitimacy and move the body closer to a European Government.17 7 The creation or approximation of a European Government could conceivably unleash pressure dynamics and domino into the rise of a bicameral legislature consisting of a Chamber of 2003] CONS77TU70NALIZING THE EUROPEAN UNION States and a Chamber of the Peoples.' 78 A conversion of the Council of Ministers into the Chamber of States 7" could be modeled after the U.S. Senate with two directly elected Senators per state, or the German Bundesrat template with a fixed range of delegates from the Ldnder.""° A full parliamentarization of the European Parliament into the Chamber of the Peoples, further down the road, would requires relinquishing the weighted composition and switching to a proportional key in consonance with the democratic principle of population sizes. The proposed Congress of the Peoples of Europe, an annual super-assembly of members of the European Parliament and the national parliaments, would present a new critter in the institutional grid of the integration framework.' 8 ' A personal pet-peeve of Monsieur Giscard's,' 12 the added benefits of such a new institution are unclear, especially if its mandate were confined to merely hosting a debating club.18 : If the European Convention proves successful, it might be more opportune to retain and formalize it, and raise its stature from mere preparer to doer when it comes to constitutional revision,"s rather than adding complexity to the system through the addition of yet another new body.'8 " Similar considerations apply to the role of national parliaments."" The current treaty system does not entrust the national parliaments with a direct institutional role. Yet, they are central players and a vital conduit in the overall integration process, since they represent the linkage between the citizens and 178. Id. at 76 n.221. 179. Villepin & Fischer, supra n. 173, at 5-6; Emmanotilidis & Giering, supra n.173, at 4. Qualified majority would be the general decision mode prevailing in the Chamber of States. All its leetings Wul(d be pu!blic. See also Thinking Enlarged Group, Bridging the Leadership Gap - A Strategy fnr Improving Political Leadership in the EU, at 7 (2002) (advocating that the Member States come together in Steering Councils relative to fields not (yet) subject to communitized lawmaking). 180. janning & Giering, supra n.33, at 55. 181. Kampfer, supra n. 106. 182. Heuser, supra n.4, at 3. 183. See Kampfer, supra n.106 (reporting reservations held by many members against this new institution). 184. HettseI, supra n.4, at 3. 185. Id. at 4. 186. See id. (reporting that "the incorporation of the national parliaments in [the anlal] congress is not perceived tobe a great improvement"). Europe." 7 In many Member States, the parliaments enact the ratification laws and scrutinize government action. "' In parliamentary systems, they exercise direct political control of the national governments, and thus indirectly over the delegations to the Council of Ministers. 8 " In other words, the national parliaments anchor and legitimize the integration framework in the Members States.' " Monsieur Giscard's blueprint envisions a role for the national parliaments within an early warning system designed to the monitor European legislation relative to the subsidiarity and proportionality principles.'' This may include a right of appeal before the European Court of Justice. 192 The proposal thus ignores any attempts at institutional tricameralism through making the national parliaments a screening chamber relative to proposals emerging from the European Commission, or through transforming the Conference of the Community and European Affairs Committees of Parliaments of the EU (Conftrence des Organes Spgcialisgs dans les Affaires Communautairesor "COSAC") into a full-fledged institution. 9 ' Rather, the trend points to recognizing the constitutional significance of the national parliaments, formalizing the convention format,' 9 4 and forging multilateral networks or mechanisms, 9 ' including interparliamentary conferences and an annual European week.' 9 6 5. Other Emerging Topics Monsieur Giscard's blueprint offers a reminder to make en2003] hanced cooperation workable.l"7 The feature itself is not new as such. In an attempt to overcome the potentially conflicting pressures between deepening and widening the concept of flexible integration was introduced into the integration system by the Treaty of Amsterdam and overhauled by the Treaty of Nice.' " Discussed throughout the 1990s, flexible integration ideally combines the firm commitment by all members to a common supranational base with the option of further integration through open partnerships in other areas. Yet, the many brakes injected into the feature make flexible integration a rather cumbersome vehicle.19 9 It is therefore not surprising that it has never been invoked thus far. Identifying salient principles governing flexibility mechanisms in a Europe of more than twenty-five members, the blueprint recognizes that vanguards or pioneer groups must be allowed to press forward in particular fields, especially foreign, security, and defense arrangements, justice and home affairs, and finance and economic policy.2"" Monsieur Giscard's blueprint offers language declaring that Europe's budget is fully financed by its own resources.20 1 In contrast to the term financial contributions, 2 2 this concept suggests 197. PDCT, supra n.1, art. 32 ("This provision should establish: - the conditions for undertaking enhanced cooperationwithin the framework of the Treaty; - if necessary, areas of the Treaty excluded from enhanced cooperation; - the principle of applying the relevant provisions of the Treaties in adopting the acts necessary for implementing enhanced cooperation; - the obligations of states participating in enhanced cooperation, and of those not so participating."). 198. The provisions on closer cooperation now apply to all pillars of the EU. TEU, supra n.5, arts. 43-45 (general provisions); EC Treaty, supra n.6, art. 11 (first pillar); TEU, supra n.5, arts. 27(a)-27(e); TEU, supra n.5, arts. 40-40(b) (third pillar). Tile second pillar also allows for the possibility of a constructive abstention. TEU, supra n.5, art. 23(1). For an overview of the genesis and content of the provisions, see Xenophon A. Yataganas, The Treaty of Nice, The Sharing of Power and the Institutional.Balance in the European Union 46-49 (Harvard Jean Monnet Working Paper, Jan. 2001). 199. Joseph Janning, Dynamik in der Zwangsjacke - Fexibilitdt in der Europdischen Union nach Amsterdam, 4 INrTGRATNON 285 (1997) (using the image of the "dynamic in the straight jacket"); Francoise de la Serre & Helen Wallace, Flexibility and Enhanced Cooperationin the European Union: Placebo ratherthan Panacea?2 (Groupement Notre Europe, Research and Policy Paper, 1997) (characterizing the feature as a placebo for France and Germany); Werner Weidenfeld & Claus Giering, Die EuropdischeUnion nach Amsterdam - Bilanz und Perspektive, in AMSTERDAM IN DER ANALYSE 82-84 (Werner Weidenfeld ed., 1998) (fearing that safeguards may lead the acquis ad absurdum). 200. Weidenfeld, supra n.79, at 3. 201. PDCT, supran.], art. 38 ("This provision states that the Union budget is fully financed by own resources and sets out the procedure for establishing the system of own resources."). 202. See RUDOLF GEIGER, EG-VERTRAG - KOMMENTAR ZU DEM VERTRAG ZUR FORDHAMINTE RNA7IONAL LAW JOURNAL a tax levied directly on economic operators and collected by European institutions exclusively for Europe's benefit. Yet, under the present system, these pre-allocated and capped resources2 11 are levied by the Member States according to their laws and regulations. "1 q Integrationists envision relinquishing the fund transfers from the Nation-States to finance most of the EU's budget.115 They argue that a direct European tax,'21 such as a share of the sales taxes,2117 would make the finances of Europe more open.2 1 1 1 In the long run that could increase revenues.2Wl However, it would add another dynamic tax layer and more red tape that could further dampen the investment appetite of economic operators in Europe. At present, the EU's international stature derives from the leverage of the Community core and the sovereignty reservoirs of the Member States. Monsieur Giscard's blueprint recognizes the need to harmonize the substance of common policies and the representation on the international stage,2 " especially when it comes to the EU's embryonic foreign policy. 2 1' In this field the supranational Commission has been given little influence. t2 The European telephone number is housed with the High Representative for Foreign Policy in the Council of Minister's GenGRONoUNG DER EUROP'AISCHlN GEIEMNSI-All 681-82 (1993) (providing the background information relative to the switch from "financial contributions" to "own resources" accomplished by the Maastricht Treaty). 203. Thea Emmerling, Von der Struktpolitik znm enroiischen inanzausgleich? 4 (CAP Working Paper, June 2002) (observing that the budget represents a little more than 1% of the gross national prodclct Of' the EU, while the government share in the Member Suates amotlntS to just under 50%). 204. GECEa'R, supra 11.202, at 683. 205. EcONONIST, s1pra n.130. 206. See Henser, sunr n.4, at 4. 207. ElONOMtST, s/lura n.130). 208. Id. See also Emmerling, s10/a n.203, aL6t-8 (lamenting the absence of a debate in the Eurolpea n institulions with respect 1o a substitution IIlthe complex structural and Cohesion funds with a gelneral financial equalization scheme). 209. LI:ONMIIST, sn/a n. 130. 210. PDCT, slna n.1, art. 41, pala. I ("This p1rovisio n should set (011 who represents the Union in internalional relations, taking into accont of' competences already exercised by the Commnnity."); id. art. 41, para. 2 ("In the light of the Convention's future work, it would define the role and flture rLank of the High Representative for Common Foreign and Security Policy."). 211. See Janis Emnmanouilidies & Franco Algeri, Strengthening Foreign I'olicy Coherence and the Capacity to Act, CAP Spotlight 20)2/02 1 (21(12) (calling the split "anachronistic"). 212. Puder, supra n.5, at 57. eral Secretariat. In addition to preserving and synergizing the status quo, 21 3 the basic options in this context include creating the new post of European Minister of Foreign Affairs under the direct authority of the President of the European Council, 2 14 moving the High Representative into a Commission Vice Presidency for Foreign Relations,21 5 or combining both offices in one person or double-head with the new title of European External Representative.21 " The events in America have exposed a strengthening air of intergovernmentalism in the EU process. For example, the recently established Eurojust agency, tasked with facilitating crossborder criminal investigations, has been housed in the Third Pillar. 217 Similarly, the diversity of the constitutional and political situations in the Member States have fragmented individual postures and caused the proliferation of special arrangements among Member States and with third countries, thus increasingly posing roadblocks with respect to the rise of a common policy and capability in the security and defense arena.1 ! Although a full-fledged withdrawal has never occurred in the fifty-year history of European integration,2 "'" Monsieur Giscard's blueprint advances the insertion of a unilateral termina213. Working Group VII, ExternalAction, Final Report, CONV 459/02, at 19 (Dec. 16, 2002). 214. Id. at 22. 215. Id. at 20. See also The Economist, supra n.13) (identifying this option as the approach favored by Germany, but met with reluctance by France and the United Kingdom). 216. ECONOMIsr,supra n. 130; Emmanouilidies & Algeri, supra n.21 1, at 2. But see Thinking Enlarged Group, supra n.179, at 5 (explaining that the single-face approach would upset the equilibrium between the institutions and curtail the autonomy of the European Commission). 217. See Chairman of Working Group X, Freedom, Security andJustice, Final Report, CONV 426/02, at 15 (Dec. 2, 2002). 218. See Chairman of Working Group VIII, Defence, Final Report, CONV 461/02 (Dec. 16, 2002). See also Emmanonilidies & Algeri, supra n.211 (recommending, inter alia, to (1)overcome the pillar structure; ( 2 ) strengthen the Commission; ( 3 ) merge the High Representative and External Relations Commissioner; ( 4 ) move the common foreign and security policy from the General Council to a separate function; ( 5 ) introcluce ma'ority voting in non-military questions; ( 6 ) integrate the European Parliament into all non-military aspects; (7) reform the decisionmaking and coordination procedures in the military domain; and (8) forge an overall foreign policy strategy). 219. In he mid-1980s, Greenland, although remaining a part of the Danish state territory, was released from the scope of applicability of the EC Treaty. See EC Treaty, supra n.6 art. 188. See also GIGER, sup1ra n.202, at 486. tion clause.22 In light of the unlimited duration of the treaties, the conspicuous absence of withdrawal provisions, the control voluntarily relinquished by each Member States over certain areas, the elastic balancing valves of general escape clauses, miniderogation schemes, and phase-in regimes sprinkled throughout the integration system, the autonomists2 21 have argued that withdrawal, even through actus contrarius,would amount to a constitutional breach. 212 The traditionalists22 ' advocate that, in the absence of a treaty-immanent regime, the general rules of public international law should be applied.22 4 Short of a joint treaty termination by all Member States, 225 it is argued that unilateral withdrawal requires a basic change of the underlying circumstances (clausula rebus sic stantibus)226 In terms of constitutionalization, the insertion of a withdrawal clause would seem counterproductive to the eternity of a solemn foundational document.227 Interestingly, voluntary withdrawal is not matched in Monsieur Giscard's blueprint by a corresponding expulsion clause. Finally, Monsieur Giscard's blueprint recognizes the significance of the amendment power within a federal system of checks and balances. 22' At present, constitutional revision is exclusively controlled by the Member States in unison. A constitutionalized revision process may involve lowering the threshold and injecting an emancipated democratic parliamentary component. 229 V. Findings and Perspectives The tour de force of constitutionalizing themes tackled in Monsieur Giscard's blueprint indicates that it is not easy to write 220. PDCT, supra n. 1, art. 46 ("The article would mention the possibility of establishing a procedure for voluntary withdrawalfrom the Union by decision of a Member State, and the institutional consequences of such a withdrawal"). 221. MICHAEL SCHWEITZER & WALDEMAR HUMMER, EUROPARECHT 207 (1993). 222. GEIGER, supra n.202, at 780-81. 223. SCHWEITZER & HUMMER, supra n.221, at 207. 224. GEIGER, supra n.202, at 781. 225. Id. at 781. 226. Id. at 782. See also BVerfGE 89, 255, 290, 305 ("ultima ratio"). 227. See Heuser, supran.4, at 4-5 (admonishing caution relative to the insertion of a withdrawal provision, since singular States might instrumentalize the new tool). 228. PDCT, supran.1, art. X ("Procedure for revision of the constitutional treaty"). 229. See Backer, supra n.143, at 190 (describing that amendments to the U.S. Constitution require large concurrent majorities within the general government-twothirds of both houses of Congress, and the states-three-quarters). CONSTITUTIONALIZJNG THE EUROPEAN UNION gresss 23 tions, in sight. a European Constitution, even when heeding the advice to take only the respectively best from the national constitutions of the Member States.2 3 In basic terms, modern constitutions marry a set of rules for the institutional organization of governance and a catalogue of fundamental rights. 231 Measured against this linkage, Monsieur Giscard's blueprint is promising. The innovative body has been said to invoke the spirit of the Philadelphia Convention.23 2 Independent of solemn comparisons, the success of the European Convention's search in the dark for the political truth will be determined by the character of the final proposal.23 3 On this path, the European Convention is actively putting meat on the bones of the skeleton. 23 4 The method of incrementally completing building blocks is yielding steady proand a final document, rather than a mere batch of opTraditionally, however, the concept of a constitution has been associated with the rise of the democratic Nation-State. 236 230. Martin Kremer, Europiische Verfassungsdiskussion - Anregungen aus den nationalen verfassungsrechtlichen Vorversttindnissen der Mitgliedsstaaten, available at http://welt politik.net (attributing this bon mot to Carlo Schmid). 231. Di Fabio, supra n.101, at 162. The author argues that the European Charter of Fundamental Rights laid "a first foundation for the political constitution of Europe." Id. at 159. See also Grimm, supra n.52, at 284 (offering that a Constitution for Europe denotes "a basic legal order of the sort that arose at the end of the 18th century in the wake of two successful revolutions in America and in France, which has since steadily spread and now come to apply almost world-wide"). 232. Kfthnhardt, supra n.125, at 38; Thomas KAR, Das Vorbild heisst Philadelphia, Financial Times Deutschland (Mar. 28, 2002). 233. Leader, Give Giscard a Chance - His EU Plan is Better than Our Leaders Say, GUARDIAN UNLIMITED, availableat http://www.guradian.co.uk/eu/story/0,7369,821179, 00.html. 234. See The European Convention, Articles and Protocols, available at http://european-convention.et.int/ArticlesTraites.asp?lang=en. For the vast array of alternatives already offered with respect to the draft articles, see Proposed Amendments to the Text of the Articles of the Treaty Establishing a Constitution for Europe, available at http:// etropean-convention.eu.int/amendemTrait.asp?lang=en. 235. See Heuser, supra n.4, at I (summarizing that Monsieur's Giscard's blueprint (1) provides for procedural target orientation; ( 2 ) integrates points of consensus; ( 3 ) contains important suggestions for reforms; ( 4 ) provides structure; and ( 5 ) leaves open decisions with respect to intractable matters); Shaw, supran.58, at 10- 15 (finding, albeit caveated, that the European Convention meets the criteria of being autonomous, representative, deliberative, receptive, and decisional). 236. The European Court ofJustice seems to subscribe to the avant-garde posture that Europe has a constitution and does not need one. European integration under this reasoning stems from a steady constitutionalization process driven in particular by jurisprudence. The tatiste school of thought advances the formula "where no {S]tate, no constitution, and where no population, no [S]tate. '' 3 7 Intermediary approaches recognize that the Community core wields State-like powers23 8 and offer the magic elixirs of post-national or multi-level constitutionalism ,2"9 neoconstitutionalism2, 4 or cosmopolitanism. 4 ' Since organisms of governance beyond the local circles retain a sense of high abstraction, it is argued, the sentiments connecting the citizens and societies in Europe do not necessarily have to be confined to the framework of a State-like entity; rather, these loyalties can conceivably arise over time relative to a State-transcending clearinghouse. Moreover, these voices offer a European notion of demos construed through multi-level prisms2 4 2 and dynamic societal interaction.243 Even in light of a departure from the State template as such, serious challenges exist when it comes to achieving the expression of the collective democratic self-determination of the peoples in Europe. A lingua franca does not exist. 24 a Similarly, enticing a public at large for the construction of the European 237. Paul Kirchof, Konpetenzaufteilung zwischen den Mitgliedstaaten under der EU, in VERTRETUNG DER EUROPAISCIIEN KOMMISSION IN DIER BUNDESREPUBLIK DEUTSCHLAND (ED): EUROPAISCHE GESPRACIIE 2/94: DiE KUNFI'I(;E VIERFASSUNGSORDNUN; DER EU EINE DOKUMENTATION at 59 (1994). 238. Grimm, surta n.52, at 288. 239. Ulrike Gufrot, The Constitutionalization af Europe and Its Inmpact n the United States, available at http:// wv.aicgs.org/Cu/Llg/shtml. 240. Mark Killian Brewer, The European Union and Legitiinacy: Tine ]oi a European Constitution, 34 CORNELL INT't. L.J. 555, 560-574 (2001) (identifying three basic assumptions relative to neoconstitutionalism: (I) traditional international law terms do not capture the notion; ( 2 ) the EU suffers from structural deficiencies; and ( 3 ) the EU has no demos). 241. Pavlos Eleftheriadis, The European Constitution and Cosmopolitan Ideals, 7 Cot UM. J. EUR. L. 21, 39 (2001) (concluding that "the cosmopolitan suggestion achieves the elusive balance between the requiremenrLs of democracy and the pressures of integration."). 242. See Joseph H.H. Weiler, Does Europe Need a Constitution?Deinos, Telos and the German Maastricht Decision, I EUR. L.J. 219 (1995) (arguing for a European notion of membership where individuals belong to multiple demoi defined in different ways). 243. jOrgen Habermas, Remarks on DieterGrimm s 'Does Europe Need a Constitution?', I EUR. L.J. 303, 306 (1995) ("The ethical-political self-understanding of citizens in a democratic community must not be taken as an historical a priori that makes democratic will-formation possible, but rather as the flowing contents of a circulatory process that is generated through the legal institutionalization of citizens' communication"). 244. For a key role of language, see, for example, Grimm, supra n.52, at 295. Jfirgen Habermas, Faktizit5t und Geltung 372 (1992) (diagnosing that ultimately it is the 'linguistic bond' that keeps any communicative community together). 245. See Civil Society and the Convention - EnhancingPublicAwareness, CAP Spotlight 2002/06 (2002) (presenting summer 2002 survey results, and recommending organized civil society as a link between the European Convention and the citizens). But see Guerot, supra n.80, at 2 (reporting 16,000 daily entries submitted through the mailbox under the menu juturum of the EU's web-based Europa portal). 246. Gui6rot, supra n.58, at 5 (describing Monsieur Giscard's sense of a convention spirit that must reflect the Greek "En-thousiasinus" - inspired by God). 247. Kfthnhardt, supra n.125, at 38. 248. Gu6rot, supra n.58,, at 10 (emphasizing one person/one vote); A Constitution for the European Union, EcoNoMIsT, Oct. 28, 2000, at 22 ("We, the people of Europe 1) .. 2. Herbert v. B6ckmann , Schwertadel, XLI Dt. Adelsblatt 391 ( 1923 ). 3. Bastian Bechtle , EU-Vfffassung-Chaotische Vorbereitungenffir EU-Konvent, SPIEGEL ONLINE 2002 , available at http://www.spiegel.de/politik/europa/0,1518, 178838 ,00. html (reporting that Monsieur Giscard, prior to the actual startup of the European Convention, sought to secure a net income of 20,000 Euro, establish a top-notch secretariat staffed with fifteen to twenty elite diplomats, and book a five-star hotel suite in Brussels for a one-year-and-a-half) . 4. Annette Heuser , The Convention Scores a PartialSuccess , CAP Spotlight 2002 /10 ( 2002 ). 5. The Three-Pillar structure was conceived by the Maastricht Treaty . Treaty on European Union, Feb. 7 , 1992 , O.J. C 224/1 ( 1992 ), 1 C.M.L.R. 719 (as amended) [hereinafter TEU] . See, e.g., Markus G . Puder, SaladeNifoisefrom Amsterdam Left-Overs - Does the Treaty of Nice Contain the InstitutionalRecipe to Ready the EuropeanUnionforEnlargement?, 8 COLUM . J. EUR . L. 53 , 54 ( 2002 ); Klaus-Dieter Borchardt , The ABC of Community Law 18 ( 2000 ), availableat http://europa.eu.int/eur-lex/en/about/abc.html. 6. The two Foundational Communities were constructed by the two treaties of 15. Hans-Peter Ispsen , Uber Supranationalitdt, in EUROPAISCHES GEMEINSCI- IAPrSRECHT IN EINZELSTUDIEN 97 ( 1984 ). But seeJean Monnet, M6moires 352 ( 1976 ) (summarizing his reservations relative to the term through "mais ce mot ne meplaisaitpaset m'a jamais plu" ). 16. Puder , supra n.5, at 57. 17. TEU, supra n.5, art . 4; see aLso Borchardt, supra n.5, at 31. 18. Revisions are accomplished through a treaty-based, multi-phase process under Article 48 of the TEU . The provision cotIples a series of steps in the international stage with a domestic ratification requirement . TEU, supra n.5 , art . 48 . 19. For the legal requirements governing grand treaty revision, see TEU, supra n.5, art . 48 (l). 20. See Single European Act , 0J . L 169/1 ( 1987 ) [ 1987 ] 2 C. M.L.R 741 [hereinafter SEA]; TEU, supra n.5; Treaty of Amsterdam amending the Treaty on Etrropean Union, the Treaties establishing the European CoImmnunities and certain related acts, 22. See Cologne European Council, Conclusions of the Presidesny ( 1999 ), available,at http://eropa.eu.int/cotIncil/Off/conclu/. For the most recent developments , see Co- 27. Puder , supra n.5, at 59. 28. These thirteen countries are Turkey , Cyprus, Malta, Hungary, Poland, Romania, Slovakia, Latvia, Estonia, Lithuania, Bulgaria, Czech Republic , and Slovenia. 29. Informal European Councit: Athens Declartion (Apr. 16, 2003 ), availabeat http:// www.eu2003.gr/en/articles/2003/4/16/2531/. 30. Copenhagen Presidency Conclusions, supra n. 22 , at 4. 31. Id . 32. Id . at 5. 33. See Josef Janning & Claus Giering, Strategien gegen die institutionele Erosion , in DEMOKRATr UND INTERESSENAUSGLEICH 46-47 , 70 (Claus Giering et al. eds., 1999 ) (listing as additional potential entrants the European Free Trade Agreement countries of Iceland, Norway, and Switzerland, the principalities of Andorra, Liechtenstein , Monaco, and San Marino, the Western Balkan States of Bosnia-Herzegovina, Croatia, SerbiaMontenegro, Macedonia, and Albania, and based on historical and geographic considerations , Belarus, Moldova, Russia, and Ukraine). 34. See Jan Mailler, Constitutionalism and the Founding of Constitutions: Carl Schmitt and the Constitutionof Europe, 21 CARDOZO L . Rhv . 1777 , 1778 ( 2000 ) (adding a question mark relative to the characterization by German constitutional scholars that the European Union ("EU") is "permanently suspended between Bundesstaat (federal [S]tate) and Staatenbund(a federation of [S]tates)"). For terminology used to capture the integration framework, see , e.g., European Court of Justice, Case 294 /83, Parti 4cologiste "Les Verts" v . European Parliament, Case 294 /83, [1986] E.C.R. 1339 , 1365 , para. 23 ( "Community based on the rule of law" ) [ hereinafter Les Verts Case]; German Federal Constitutional Court, Cases 2 BvR 2134/92 & 2159/92 Manfred Brunner and others v. 41. Bertelsmann Group for Policy Research at the Center for Applied Research (University of Munich), Conceiving Europe's Reform, Discussion Paperjbr the Charlemagne Forum on Europe in Aachen 24 ( 2002 ), available at http://www.bertelsmann-stiftung.de. 42. HEINZ LAUFER & THOMAS FISCHEIER , F6DERALISMUS ALS STRUKTURPRINZIP FOR DIE EUROPAISCHE UNION 11 , n. 8 ( 1996 ) (offering numerous references relative to a receding tacit consent). 43. The various hours of truth found vivid expression in the adverse referenda in Denmark on the TEU as well as the country's entry into the eurozone, the audible stuttering of Franco-German engine, the undignified collapse of the Santer Commission, the initial plunge of the euro, the poor acceptance of the European Parliament, and the overall bad image of Brussels. This diagnosis is further embodied in the derisive slogans that were coined over the years, including "Monster of Maastricht," "dictatorship by the councils," "undemocratic super State," "faceless and soulless eurocracy," and "Nation-consuming Leviathan." Id. at 9-10. 44. Miller , supra n. 34 , at 1179. 45. TEU, supra n.5, art . 1. 46. See Bertelsman n Europa-Kom mission , Europas Vollendung vorbereiten - Forderungenan die Ri'gerungskonfrrenz 2000 , 27 ( 2000 ), availableat http://www.cap.unimuenchen.de (using the term "das Europa der Birger," or, "the Europe of the Citizens" ). 52. Hans Peter Ipsen , Zur Executiv-Rechtssetzung in der Europiischen Gemeinschaft , in FESTSCHRIFT FOR PETER LERCHE 425 ( 1993 ) ; Koen Lenaerts, Some Reflections on the Separation of Powers in the European Community, 28 COMMON MKT . L. REV. 11 ( 1991 ) ; Georg Ress, Uber die Notwendigkeit parlamentarischerLegitimierung der Rechtssetzung der Europdischen Gemeinschaften , in FESTSCHRIFr FUR WILHELM GECK 625 ( 1989 ). See also Dieter Grimm, Does Europe Need a Constitution? , I EUR . L.J. 282 , 291 ( 1995 ) (stating that "[t] he difference lies in the reference back to the will of the Member States rather than to the people" ). 53. MOiller, supra n. 34 , at 1778. 54. Volkmann-Schluck , supra n. 40 , at 10 (speaking of a legitimacy criterion); Weltpolitik.net, supran.35 (diagnosing that output has dominated over input legitimation). 61. Wvittrock , supra n. 57 . 62. The European Convention, Open Letter to the Editors of Newspapers in Member States and Candidate Countries (Mar. 27 , 2002 ); The European Convention, Introduction to the Forum Website , availabe at http://europa.eu.int/futirum/forum-convention/index_en.htm; see aLso Olaf Wittrock, Wie funktioniert der Konvent, available at http://www.europa-digital.de/aktuell/dossier/konvent/arbeit.shtml. 63. See Welcome to the Youth Convention , available at http://www.youth-convention. net/en/home.html. 64. The European Convention, Praesidium, available at http://european-convention. eu.int/praesidium.asp?lang=en (providing helpful background information, including pertinent documents). 65. Wittrock , supra n. 57 . The European Convention's General Secretariat has been established at the General Secretariat of the Council of Ministers in Brussels. Sir John Kerr is the Secretary General . See Shaw, supra n. 58 , at 1I (observing that, while the membership of the highly influential Secretariat is diffused, the powerful deputy Secretary General of the Council , Pierre de Boissieu, is said to have wielded considerable influence with respect to certain (non-) appoinunents) . 66. See SHAW , supra n. 58 , at 11. 67. Wittrock , supra n. 57 . 68. Id . For the chronologies and topics, see Das aktuelle Dossier, Die Plenardebatten im EU-Verfassungskonvent , available at http://www.europa-digital.de/aktuell/dossier/konvent/plensr. 69. Wittrock , supra n. 57 . 70. Id . 71. Matthias Zier , Revolution in der Warteschlleij, available at http://www.europa-digital.de/aktuell/dossier/konveit/zwibil .sh rml. 72. Wittrock , snpra n.57. See also Eric Philippart, The Convention on the uture of ihe EU, No. I I CEPS Policy Brif 5 ( 2002 ). 73.. See The Eur opean Convention , Proceedings, available at http://european-convention. eu.int/travaux.asp?lang=en. 74. See Annette Heuser, S tructfure ofhe Conveniov Detromines Outcome - Organization of the Working Groups , CAP Sri''rr r; Tii 2002 /03 ( 2002 ) (recommending nine working groups with chiseled objectives); Kristian Kampfer, Five Vefassungfiir Europa? Die deutschen A usgaugspositionen ind eine Zwischenbilanz des Koivents , available at http://www.erropa-digital.de/aktuell/dossier/ konven t/meyer.sh illI ( summarizing a presentation at the German Parliamentar) Society by Professor Jtirgen Meyer, the delegate firomn the German Parliament) . 75. The European Convention, Working Groups, available at http://eur opCan-colvention.eu.int/grptra v.asp?Iang=en. 76. The Etr'opean Convention, Working Groups: Introduction, supra n.73 (posting the final reports ). 77. The Eurropean Co nvention, Contibutions oI'Membrs of the Convention, available (ii http://eropea-crionventioll.eul.int/dccregister.asp?laig=en&Coi tenit=CONTRI B . 78. The European Convention, Discussion Circles, available (it http://european-conventioi.et.int/cloc_CiRCLE. asp?lang=eri. The first circle revolves around the European Court ofJ usticc . 79. The European Convention, Timetables of Meetings, availableat http://europeanconvention.eu.int. For an evaluation of the first phase, see Werner Weidenfeld, From Listening to Consensus-Building - The Second Working Stage of the Convention , CAP SPOTLIGHT 2002 /07 ( 2002 ) (welcoming the general direction provided by The European Convention's initial round of consultations). 80. See Gu(6rot, supra n.58, at 9-10 (referring to discussions about the alternative of a Europewide referendum on the basis of "one person, one vote" ). 81. See Olaf Wittrock, Der Konventionsfahrplan,available at http://www.europa-digital.de/aktuell/dossier/konvent/fahrplan.shtml. 82. The wee hours of Nice - grueling confession chair procedures, merciless fights for food and thought papers, and endless haggling and almost incomprehensible compromises - had caused lasting memories among negotiators and reporters . See Puder, supra n.5 , at 63, nn. 88 - 91 . 83. Phillippart , supra n. 72 , at I ( noting that Roman Herzog's convention that drafted the Charter of Fundamental Rights was not directed to prepare an intergovernmental conference ). 84. Id . For an example of this template, see Puder, supra n.5, at 62 (describing the process that culminated with the Nice summit ). 85. Phillippart , supra n. 72 , at I ( emphasizing the personal capacity of this format). 86. Id . (explaining that this formula was used when the ad hoc Assembly (the pre- 88. Zier , supra n.71. For other considerations , see Kristian Kampfer, Die Zukunft Europasin Joschka ,5 Hdinden, available at http://www.europa-digital.de/aktuell/dossier/ konvent/haende.shtml (diagnosing thatJoschka Fischer's move to replace a university professor reflects a power struggle between the Foreign Office and the Chancellor's Office) . 89. Zier , supra n. 71 . 90. Id . 91. Id . See also Martin Banks, Giscard Control over Convention Speaking Rights under Attack , European Voice, available at http://www.cap.uni-muenchen.de/aktuell/ medien/2002/20020228.htnl. 92. Zier , supra n. 71 . 93. Id . 94. Id . 123. Kampfer , suna n. 88 . 124. The term "federal" was dropped during the negotiations to avoid placing into jeopardy the entry into force of the Maastricht Treaty . See LAUFER & FISCHER, supra n.42, at 12 , 18 - 25 (offering further references). 125. See , e.g., Volkmann-Schluck, supra n.40 , at 27; Ludger Kfihnhardt , Towards Europe 2007 - Identity, Institution-Building and the Constitution of Europe 10 ( 2001 ) ; LAUFER & FISCHER, supra n . 42 , at 19. 126. EC Treaty, supra n.6, art . 281; Euratom Treaty , supra n.6 , art . 184. See also Matthias Pechstein & Christian Koenig , Rechtspersdnlichkeitfir die Europdische Union? in Europaische Zeitschrift ir Wirtschaftsrecht 225 ( 1997 ) (explaining that the EU exists through the coordinated, unified appearance of the European Communities as well as the Member States in joint leverage of their respective competences). 127. Chairman of Working Group III on Legal Personality, Final Report, CONV 305/02 (Oct. 1 , 2002 ). 128. Charter of Fundamental Rights of the European Union , O.J. C 346/1 ( 2000 ). 129. "The Charter is simply a statement of policy and the United Kingdom is not the only Member State to oppose something of a binding legal nature." Tony Blair, British Prime Minister , Nov. 14 , 2000 , availableat http://europa.eu.int/comm/justicehome/unit/charte/en/charter03.html. 130. Europe 's New Shape , ECONOMis-r, Dec . 14 , 2001 , available at http://www.global policy.org/globaliz/politics/ 1214europe.htm. 131. PDCT, supra n.1, art. 6. See also PDCT Summaiy Report, supra n.6 , at 7-12; 143. Mazan , supra n. 48 , at 95- 97 . But seeLarry Cata Backer, The Extra-National State: American Confederate IederalisMn and the European Union, 7 COLUM . J. EUR . L. 173 , 225 - 26 ( 2001 ) (diagnosing that this conundrum of German theory in search of sovereignty "ignores the ftndamental basis of structural ordering within Europe" ). 144. PDCT,supra n.1, title Ill ( "Union Competence and Actions" ). See also Chairman of Working Group V, Complimentary Competences , FinalReport, CONV 375 /1/02 at 2 ( Nov . 4, 2002 ) [hereinafter 2002 Working Group VI, FinalReport]. 145. PDCT, supra n.1, art . 10 ( "The article indicates the areas of exclusive Union competence" ). 146. Id . art. II ("The article indicates the areas of competence shared between the Union and the Member States . It establishes the principle that, as and when the Union takes action in these areas, the Member States may act only within the limits defined by the Union legislation."). 147. Id . art. 12 ( "This provision indicates the areas in which the Union supports or coordinates action by the Member States, but does not have the competence to legislate."). 148. Id . at 2-3. 149. See also 2002 Working Group V, F"inal Report, supra n.144, at 6-7. 150. Id . 151. See also 2002 Working Group V, Final Report , supra n. 144 , at 3-5 , 8 - 10 . The Working Group recommends usage of the term "supporting measures." Id. at 1. 152. See , e.g., ECONOMIST, supran.130 (presenting the example of bail-outs of local industry); Volkmann-Schluck, supra n.40, at 40 (offering quotes from Governors Edmund Stoiber of Bavaria and Wolfgang Clement of Northrhine-Westphalia) . 153. Under the German Grundgesetz (GG), the states are the presumed repositories for all legislative activities. However, the federation enters the picture through absolute, concurrent, and framework competences as well as tacitly implied powers. In practice, most areas, except police, culture, and education, have been overlain by federal legislation. The states exercise input through the Federal Council . GG, arts. 30 , 71 - 75 . See KARL-HEINZ SEIFERT & DIETER HOMiG , GRUNDGESETZ FOR DIF BUNDESREPUBLIK DEUTSCHLAND 220 , 331 ( 1988 ). 154. PDCT, supra n.], art. 13 ( "In certain areas the Member States may define and pursue common policies, within the Union framework and according to specific rules. This article indicates these areas" ). 155. Volkmann-Schluck , supra n. 40 , at 40-41 ( describing players and positions in the context of renationalization of policy fields). 156. ECONOMIST, supra n. 130 ( noting that the budget is disproportionately financed by Germany) . 157. Id . 158. Mazan , supra n. 48 , at 146-54, 160 - 64 . 159. Ulrich Everling , Zur Stellung der Mitgliedstaatender Europdischen Union als "Herren der Vrtrge," in FESTSCfIRIFT FOR RUDOLF BERNHARDT 1161 ( 1995 ). 160. Puder , supra n.5, at 57 161. Mazan , supra n. 48 , at 146-155. 162. See Claus-Dieter Ehlermann , Ein Plddoyerfiirdie dezentrale Kontrolle der Anwendung des Gemeinschaftsrechts durch die Mitgliedsstaaten, in FESTSCHRIFr FOR PIERRE PESCATORE 205 ( 1987 ). 163. PDCT, supra n.1, Title IV ( "Union Institutions" ). 164. Id . art. 15 ( "When the Convention has discussed it, this article could establish the term of office and appointment procedure for the Presidency of the EuropeanCouncil, its role and responsibilities."). 165. Id . art. 18 ( "This article would establish the role and appointment procedure for the Presidency of the Commission."). 166. Id . art. 17 ( "This article lists the composition and the duties of the Council, and would refer to the Council's formations."). 167. Id . art. 19 ( "This article would raise the possibility of establishing a Congress of the Peoples of Europe, determine its composition and the procedure for appointing its members, and define its powers."). It would be drafted in the light of the Convention's work. 168. Id . art. 16 , para. I ("This article establishes the composition of the European Parliament, the members of which are elected by direct universal suffrage."); PDCT, art. 16, para. 2 ("It lists the powers of the European Parliament introducing a motion of censure on the activities of the Commission, and the procedure and consequences of such a motion."). 169. Id . art. 8, para . 3 ( "It would set out the rules for effective monitoring of subsidiarity and proportionality . The role of the National Parliaments would be mentioned."). 170. Puder , supra n.5, at 57. 171. Id . 172. See Claus Giering , "Offene Koordiniering" - Sachstand, Voiziige und Probleme , CAP-THESENPAPIER 05/ 2001 ( 2001 ). 173. Heuser , supra n. 4, at 3 (predicting enhanced leadership primarily in the foreign and security policy arena) . See also Dominique de Villepin & Joschka Fischer, Deutsch-FranzsischerBeitragzum Euroinischen Konvent iber the institutionAerclhliteektur der Union , CONTRIB 192, CONV 489 /03, at 3 (Jan. 16, 2003 ) (proposing a five-year term); Janis A. Emmanouilidis & Claus Giering, Enhancing the Political Leadership in the EU - How the EU Could Work with Two Presidents , CAP SPici-i r-r2003/01 2-3 ( 2003 ). 174. Villepin & Fischer, supra n. 173 , at 4. See also Emmanouilidis & Giering, supra n.173, at 3 (disfavoring the route of a "double-head" within one person) . See also Kommission der Europaischen Gemeinschaften , Ffir die Europdiische Union - Frieden, Freiheit, Solidaritiat,Mitteiling der Kommission zur InstitutionellenArchitektur, KOM ( 2002 ) 728, at 19 (( 2002 ) (supporting election of the Commission President by the European Parliament and subsequent confirmation by the European Council) . 175. EcONOMIST,supra n. 130 (identifying Guy Verhostadt of Belgium as the major proponent of the presidential model ). 176. Id . (at the time also listing France) . 177. Puder , suna n.8, at 67-68 (discussing the Government Model that was floated in connection with the Nice reforms relative to the European Commission) . 187. Villepin & Fischer, supra n. 173 , at 7. 188. See Working Group IV, The Role of National Parliaments, FinalReport , CONV 353 /02, at 4-9 (Oct. 22 , 2002 ) (speaking of national scrutiny systems ). 189. Kampfer , supra n.106. See also LAUFER & FISCHER, supra n.42, at 156 (discussing the idea to revise Article 203 of the EC Treaty and open the Council of Ministers to national parliamentarians). 190. Working Group IV, supra n. 188 , at 2. 191. Id . at 9-12 ; Chairman of Working Group I on the Principle of Subsidiarity, CONV 286 /02 (Sept. 23, 2002 ). 192. Id . at 7-9. 193. PDCT Summary, supra n.], at 5 & 14; Working Group IV, supra n. 188 , at 13- 14 . See also LAUFER & FISCHER, supra n.42, at 153 (referring to a French proposal circulated during the Maastricht debate ). 194. PDCT Summary, supra n.], at 5. 195. Id . at 5; Working Group IV, supra n. 188 , at 12-15; Kampfer, supra n. 106 . 196. Working Group IV, supra n. 188 , at 15.


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Markus G. Puder. Constitutionalizing the European Union - More than a Sense of Direction from the Convention on the Future of Europe, Fordham International Law Journal, 2002,