Translation: Dr. Nicola Rowe, Hamburg

48.   A. Parallels between a constitution and the European Communities’ founding treaties were noted very early on, and the interpretation of those treaties was coloured accordingly. Ophüls stressed that the Communities’ treaties contained a basic order, a closed system which governed Community law in the same way that a domestic constitution governs national law. With regard to the further steps towards integration set for the future, he spoke of “planning constitutions” [“Planungsverfassungen”]. Later, after several amendments had been made to the treaties, Ipsen referred to them as “changing constitutions” [“Wandelverfassungen”]. The 1980s saw an increasing tendency to characterise the treaties as constitutions, particularly in light of the fact that the material regulated by the treaties and the functions which they served were typically constitutional. That view certainly saw the treaties as having a normative constitutional character within the meaning generally understood by constitutional theory. Today, this view is supported by the overwhelming majority of commentators on European law. Moreover, initiatives taken by the European Parliament in 1984 and 1994 have triggered debate on whether a new constitution should be formally adopted. ^[57]

49.   The European Court of Justice has consistently supported a constitutional interpretation of treaty law. Its jurisprudence echoed both strong parallels with those parts of domestic law which implement the principle of the rule of law and a preoccupation with the construction of a discrete jurisprudential system. In recent years, the 1986 Les Verts judgment and, in 1991, the Court’s First Opinion on the European Economic Area Agreement have underlined (if not explained or justified) the Court’s acquiescence in the constitutional interpretation of the founding treaties. The Federal Constitutional Court has referred to a “Community constitution” on several occasions. It has not used the phrase in any technical sense, however, nor has it expressed an opinion on how the treaties should properly be classified by constitutional theory. A constitutional interpretation of the treaties has been overwhelmingly rejected by commentators writing in the fields of national constitutional law and general state theory (political theory [Allgemeine Staatslehre]) ^[58] , however, primarily with the justification, drawn from various standard concepts of the nature of a (domestic) constitution, that only a state can have a constitution. According to a second objection, only a European people comprising the European Union’s citizens as a whole would be capable of issuing a European constitution, but the peoples of Europe have not yet coalesced to a point where they can properly be described as a “European people”. More rarely, it is claimed that only a European nation could issue a European constitution. In the meantime, a dispute has broken out over the constitution of the European Union. It does not only concern concepts and definitions, but also the importance of national constitutional law on the one hand and primary Union law on the other. It is effectively a debate about the importance of state and union als political institutions. ^[59]

50.   Europe already faces one unavoidable consequence of integration, which has lent the debate over a constitution for the European Union particular significance: since there are forces at play within member states which are not directly regulated by domestic constitutions, those constitutions function less effectively as a guiding framework than would otherwise be the case. Furthermore, the authority which domestic constitutions exercise over those subject to their jurisdiction has been intermittently interrupted by directives from another legal order which deviate from domestic constitutional norms. The reduced significance of domestic constitutions is particularly clear in the area of basic rights, but it is also evident in material constitutional principles, and it can even be detected in respect of special features of national constitutions which are not in and of themselves related to any of the Union’s fields of activity. One of the purposes of a constitution is integration, and integration is a function which has been particularly significant for constitutional states in the second half of the twentieth century. Yet the reduced significance of domestic constitutions reduces their ability to perform that integrative function. If the political system of which the Union is a part is to be able to ensure what, in the member states, was once a given, the functional deficiencies which are becoming evident in domestic constitutions will need to be balanced by a counterpart at the Union level. The question of a new constitution is particularly relevant in this context, since the European Union’s current treaties fail to meet the standard required. ^[60]

51.   B. (I.) The central issue in the discussion about a European constitution is whether the present European governing entity is capable of having a constitution at all in its current form - whether, that is, it meets the requirements for constitutional capacity [Verfassungsfähigkeit] established by constitutional theory. Since the constitution was conceived and realised as a distinct, legal institution in the era of nation-states, it is traditionally linked to the state as a form of organisation. Constitutional theory was developed within the context of the nation-state; the historical adoptions of constitutions which served as points of reference for constitutional theory all occurred in states. Nowadays, the supranational union offers a form of organisation based on public international law which resembles a state, but it is not clear whether that resemblance alone is enough to justify applying the concept of a constitution. Like a state, a union needs a securely anchored framework, that allows but delimits development, giving, in effect, the basic security which characterises the constitutional state. Yet a union constitution would lag behind a state constitution both in terms of its legitimacy (since it cannot be traced to a state people) and its normative effect (since it would only be a complementary constitution, and since its norms would not enjoy primacy over member states’ domestic law within the meaning of a hierarchy of norms). ^[61]

52.   Every conceivable solution to the problem of constitutional capacity brings fresh problems in its wake. Accepting the possibility of a union constitution places the “constitution”, used as a term of art, in danger of dilution, and thus places the concept of a constitution in danger of progressive devaluation. Ruling out the possibility of a union constitution would mean, depending on the way in which the member states, in their capacity as “masters of the treaties”, responded to the situation,  (i) temporary stagnation in the pace of integration, followed by a trend towards centralism; or (ii) a premature and insufficiently prepared transition to a geo-regional unification state; or (iii) a gradual emasculation of the primacy of the constitution through ever-larger “constitution-free zones”; or (iv) an increase in the supranational union’s complexity as a result of the introduction of a legal institution which resembles a constitution but whose potential consequences would be difficult to predict in advance. Constitutional theory stands at a crossroads, and choosing its future path is not a simple matter. The choice can be described as a constitutional dilemma of supranational integration. ^[62]

53.   The cautious inclusion of certain non-state forms of organisation in constitutional theory is suggested here as a solution to the constitutional dilemma described above. It is necessary to distinguish between the usual forms of non-state organisation (which, for several reasons, are incapable of a constitution) and those forms where a pronounced similarity to a state justifies the adoption of the concept of a constitution, concomitant difficulties notwithstanding. This solution makes it possible to pursue constitutional theory’s central preoccupation (providing for a reliable, basic political order and for the moderation, and general orientation, of public power) even in the era of less significant, integrated statehood, without modifying its core postulate (the basic idea that any holder of power in a political community should be subject to higher law). This solution is thus a continuation of constitutional theory, not a falsification of its tenets. It permits the subjection of public power to higher law to the greatest possible extent, even in the face of globalisation and geo-regionalisation. Moreover, it recognises the need for a multicultural organisation of integration to gather pre-state constitutional experience which could provide the basis for the drafting of a state constitution at a later date. It avoids the negative consequences which would arise if integration were pursued in the absence of a constitution, but it does not fail to heed the danger of relaxing the tenets of constitutional theory. It is the least disadvantageous solution to the constitutional dilemma. ^[63]

54.   From a dogmatic point of view, non-state organisations can be included in constitutional theory by distinguishing between different types of constitution [Verfassungstypen] within a more broadly defined concept of constitution. On the basis of the form of organisation in question, three types of constitution need to be distinguished thus far: the (sovereign) state constitution, the federated state constitution, as common in federations, and - potentially - the union constitution. While the essential tenets of constitutional theory apply to each of these kinds of constitution, other constitutional precepts are valid only for a particular sort, and require considerable adaptation before they can be applied - if, indeed, they can be applied at all - to other constitutional types. Including organisations which resemble states within constitutional theory does not imply, then, that any conceivable union constitution would be equivalent to the constitution of a state. ^[64]

55.   Constitutional theory has seen no debate as yet over the conceptual preconditions for constitutional capacity, since the concept of constitutional capacity has not yet been introduced. Thus, constitutional theory is only able to address the general meaning and purpose of a constitution, and to examine those qualities of a state which are most significant from that point of view. As indicated above, the central preoccupation and core postulate of constitutional theory must dominate any such investigation. The first requirement is an organisation (in other words, a corporate body). A constitution is restricted to one specific organisation in any case [Verbandsspezifität], although that organisation can be a composite, encompassing others. It is not, then, possible to speak of a “European Constitution” which is related to a specific territory, or which unites the legally independent European organisations of the EU, the Council of Europe and the OSCE within a single constitutional order. Since a constitution is only relevant to highly developed organisations which carry political weight, further conceptual preconditions are a high degree of organisation and far-reaching competences. The organisation must, further, reflect a (general) political union: the institution of the constitution has been designed to establish the legal order of human political communities, not to serve as a steering mechanism for specialised organisations. The organisation must also enjoy significant autonomy in fulfilling the tasks assigned to it, since the institution of the constitution is designed to allow independent power structures to hold themselves in check, not to enable the supervision of functionaries who merely receive and carry out instructions. This means that organisations based on international law will need to develop an autonomous political will, independent of the individual political wills of member states and their governments. A significant proportion of important decisions must, therefore, fall to the organisation’s unitary organs or be subject to the majority principle. Thus, if the 1966 Luxembourg Compromise were understood as legally binding, it would be impossible to recognise the European Communities’ constitutional capacity until the late 1980s. Finally, since a constitution is also a fundamental legal document which guarantees individual citizens the support and protection of the community, constitutional capacity requires that an organisation draw upon a close community of responsibility and solidarity which resembles the community of common destiny [“Schicksalsgemeinschaft”] evident in the state. - As a general rule, the supranational union fulfils these requirements. In individual cases, however, constitutional capacity may be denied because the founding treaty gives member states’ governments such far-reaching control that reference to the autonomous fulfilment of duties becomes inappropriate. ^[65]

56.   (II.) Value judgments play as significant a role in defining the conceptual preconditions for a constitution as they do in establishing the preconditions for constitutional capacity, or, indeed, in resolving many other constitutional questions. Stringently accurate statements are impossible, since the issues involved cannot be resolved by logic alone. According to the theory proposed here, it must be possible to identify the characteristics on which the effectiveness of the constitution as a legal institution depends. These characteristics are predominantly formal, but it is possible to identify certain material characteristics among them. Since a wholly formal (or wholly material) constitution cannot exist, a great deal of what has been termed a “constitution” in European constitutional debate is not really a constitution within the terms of constitutional theory at all.

57.   There are only five formal requirements for a union constitution. First, it must be possible to identify a set of norms enacted by a single, general normative act: the constitution may not develop gradually or emerge as the product of judge-made law. Secondly, the constitution must exist in written form. It must, thirdly, have the status of superior law; a union constitution, therefore, can only be a constitutional treaty. Fourthly, specific procedures must be established for constitutional amendment. Fifthly, the constitution must self-identify as a constitution. A union constitution has four material preconditions. First, the union must be equipped with organs and organisational law. Secondly, the relationship between the union and its member states must be regulated exhaustively. This may include provisions foreseeing sanctions for a crisis situation where a member state breaks out of the constitutional framework. Thirdly, the appropriate organisational steps must have been taken to provide for the requirements necessary at union level for the creation of supranational public power. Finally, the union’s philosophical and political compass must be clear. ^[66]

58.   (III.) In a supranational union, the creation of a constitution poses a particular problem. For one thing, the constituent authority (the creator of the constitution and holder of constituent power [Verfassunggeber]) is to be determined quite differently from the way it would be determined in a state. As a general rule, the institution of the constitution is not restricted to a particular circle of users: whoever succeeds in establishing and enforcing a set of norms which enjoy the authority of a constitution (in the normative sense) is the constituent authority. Where the state is concerned, our value system points to the people as the appropriate holder of constituent power, but a constitution can, in fact, be established by anyone in power. In the supranational union, by contrast, constituent power is reserved to the member states: as the superior source of law in a constitutional organisation which is itself based on public international law, the constitution must be contained in the founding treaty, which has to be designed as a constitutional treaty [Verfassungsvertrag]. According to public international law, only states are invested with the legal power to create such treaties. States may opt to include others in the treaty-making process, but the act of adopting a constitution - the conclusion of the treaty, which is the act giving rise to constitutional norms - is theirs, and theirs alone. Popular constituent power within the meaning of that term in democratic constitutional theory does not and cannot exist in a constitutional organisation which is itself based on international law. ^[67]

59.   None of this should be understood to mean that there is no place for popular participation in the process of adopting a constitution. From the perspective of democratic constitutional theory, the legitimacy of the union’s constitution needs to approximate that of a constitution based on popular constituent power as closely as possible. In addition, from the point of view of political theory, the union constitution must have a significant power of integration, since it needs to complement the weakened integrative power of member states’ constitutions effectively (supra). It would be useful, in light of these criteria, to adopt a parallel procedure in which the conclusion of the treaty is accompanied by specific measures which ensure legitimacy and integrative power. One step of that parallel procedure would be a double referendum in which citizens are asked both for their approval of the union constitution in their capacity as citizens of the union and, in their capacity as citizens of a member state, whether that state should ratify the constitutional treaty. From the point of view of democratic theory, the referendum’s participants are acting as members of two peoples: the national people of the state [Staatsvolk] and the people of the union [Unionsvolk] which, while it is not a people of a state, is nonetheless a general political community, and therefore fully able to secure its governing entity democratic legitimacy. In another step, a preparatory constitutional assembly must be called into being. Its work must be accompanied and supported by a broad public discussion. Supportive measures must be taken to ensure that a public constitutional discussion is held throughout the union. In light of these steps, a preparatory treaty is advisable to deal with the modalities of the adoption of a constitution. ^[68]

60.   Constitutional amendments represent a further specific problem. At first glance, the distinction between constituent power and amending power seems to pose difficulties for a supranational union. International treaties like a constitutional treaty of union are usually altered by their signatories (the member states) in the same way that they were concluded, and they may generally be amended as the signatories see fit. But the law of treaties does envisage other procedures by which treaties may be changed (sc. art. 40(1) Vienna Convention) - amendment by a qualified majority of signatories, for example, or an autonomous amendment to the treaty provisions by the union’s organs. In this context, the distinction between constituent and amending power is free of difficulty, since the power to amend the treaty is restricted, and derives from the treaty itself. Three different procedures for constitutional amendment are suggested here. They vary according to the magnitude of change envisaged, but each of them foresees the participation of the people of the union or its representatives. According to this suggestion, insignificant amendments could be made without member states’ unanimous consent.

61.   Since the member states are “masters of the treaty”, they can ignore the provisions made in the constitutional treaty regarding the amendment procedure. Equally, they can ignore the (written and unwritten) limits to constitutional amendment. By virtue of their sovereignty, member states enjoy the power to conclude treaties, and that power is not limited where a union’s founding treaty has been designed as a constitutional treaty. A treaty of amendment set outside the framework of the constitutional treaty would, therefore, be valid at public international law. Nonetheless, it would imply a complete break with the old constitutional order, and hence also at least a tacit repeal of the constitution, or, indeed, the adoption of a new constitution. The democratic legitimacy obtained from the lengthy parallel procedure for the old constitution (for the treaty of union qua constitutional treaty, in other words) would thereby be lost. ^[69]

62.   C. The European Union’s founding treaties do not have constitutional status, even though they would easily fulfil most of the requirements for a constitution. Until the penalty payment mechanism was introduced (art. 171(2) [today 228(2)] EC Treaty, 143(2) EURATOM Treaty), no sanctions were in place with which member states who were committing grave breaches of treaty could be compelled to return to the conventional constitutional order. The lack of sanctions left unanswered questions which were integral to the proper functioning of the community as a whole. Nor, until the Amsterdam reforms, were the Union’s fundamental values and ideas encapsulated in written form (cf. now art. 6(1) TEU). Only one necessary characteristic of a constitution is still absent today: nowhere do the Union’s founding documents acknowledge their own constitutional character. The effect of self-identifying as a constitution in this way should not be underestimated: it reflects member states’ readiness to accept a constitution for their organisation of integration, and hence to accept the increased political import which would accrue to the organisation once such a step had been taken. Thus far, that readiness has been lacking. ^[70]

63.   D. One of the greatest challenges of the current decade will be the creation of a European Union constitution. It is timely, then, to establish criteria for the constitution of a supranational union.

64.   (I.) A general constitutional theory of the supranational union will focus on conceptual and drafting requirements. A union’s constitution will need to fulfil the same functions as the constitution of a state (except those functions which are directly linked to the status of the constituted entity as a state). It must also provide a framework within which the union’s own dynamic nature can evolve, reconciling continuity with change while respecting its own nature as an international treaty subject to public international law. All of this needs to be accomplished in several languages simultaneously: the treaty’s versions must, as nearly as possible, be identical, while remaining clear and comprehensible. This is more than would be required of a state constitution. The emphasis should thus be, not on adopting a constitution as quickly as possible, but on ensuring that the constitution which is eventually adopted has been thoroughly thought through.

65.   Transparency is an important criterion. A supranational union is necessarily a complicated affair, but its constitution should not be permitted to complicate matters further. There should only be a single, readily comprehensible constitutional document for a single governing entity with a single legal personality and a coherent comprehensible set of organs. Provision should be made for a limited number of structurally simple decision-making procedures; if necessary, a certain degree of efficiency may need to be sacrificed to that goal. Since supranational unions are dynamic, a union constitution is a “changing constitution” [Wandelverfassung] which must be more frequently adapted to changing problems and perspectives than the constitution of a state. Its design should thus follow a technical concept which facilitates alterations. A union constitution should have a consistent modular structure in which regulations of similar or related issues are concentrated in closed sets of norms as far as practicable. It would be useful, for example, to concentrate important procedural norms in a single module.

66.   It is important, too, that the constitution be comprehensible. Constitutions, whether national or supranational, are not the domain of specialists. Rather, they speak to all jurists, who will need to respect constitutional norms in creating, applying and elaborating other law, and they also speak to the citizens within their area of application. The structure of the union constitution and its provisions should thus be as straightforward as possible. Like national constitutions, a union constitution should make generous use of open norms, refraining as far as possible from bureaucratic details. The linguistic style employed in the constitution should invite its addressees to identify with it: a constitution is not just a body of regulations, but a political manifesto whose content should invite individuals to identify with the community.

67.   In their current form, the European Union’s founding treaties fall so far short of these requirements that transforming and collating them into a constitutional treaty without far-reaching reform seems a questionable goal. If a European constitution were adopted, a significant part of the Union’s primary law would need to be re-formulated. Part three of the EC Treaty, which regulates the coummunity policies, does, however, give partial effect to the criterion that the constitution of a supranational union should have a modular structure. ^[71]

68.   From the point of view of a general constitutional theory for the supranational union, requirements governing the subject-matter of a constitution also obtain. The first of these is the requirement, discussed above, for a homogeneity clause. Certain fundamental matters must also be regulated (for example the question of the union’s legal personality, basic duties of membership, the issue of mutual loyalty within the union and the basics of the allocation of competences). But the union’s constitution should also address fundamental matters in the strict sense: it should contain those legal norms which are a sine qua non if the union is to be able to function as a supranational organisation of integration. The European Communities and the European Union have had to resolve most of these issues incrementally on the basis of judge-made law. A constitution would need, therefore, to address the direct validity of union law at the domestic level, the independence of the national and supranational legal orders and the primacy of union law. It would also need to contain measures with which union law could, if necessary, be enforced: it would need to include sanctions. These could certainly go beyond those already in place in the European Union. Further, the constitution should contain preventive measures with which union law could be enforced on a day-to-day basis. For example, the constitution might provide for the direct application of union directives once a certain period has elapsed, or for strict state liability by union law. Finally, the constitution of a supranational union must also regulate the accession, secession and expulsion of member states, establishing substantive and procedural norms. - By contrast, the dynamic nature of the union makes it impracticable to establish general criteria for the system of competences. Drafting competence norms requires care in order to ensure that they are not subjected to overly generous interpretation. The principle of subsidiarity is essentially useful as a principle of political theory in order to allocate and distribute competences. ^[72]

69.   (II.) Special requirements for the constitution of a free and democratic supranational union are considered here only in overview, with attention given to general approaches and certain particular aspects. If organisational union law is to be able to give effect to the principle of democracy at the union level, it will need to ensure that democratic legitimacy is accomplished first and foremost through the people of the union and that people’s representatives, while the additional, more distant and thus lesser legitimacy deriving from the peoples of member states and their representative parliaments is merely complementary (primacy of democratic legitimacy through the people of the union). As integration progresses, the political centre will eventually need to shift from the council, which is a federal organ, to the union’s parliament, and, to some extent, to other organs of the union which are elected (or at least indirectly legitimated) by the people of the union. From the perspective of democratic theory, however, the additional legitimacy provided by state peoples through their governments in the council makes a relatively long transition period acceptable, with the proviso that significant measures cannot be taken during this period without the consent of the union’s parliament. Since the union’s parliament must be suitable for that task, the European Parliament will need to be altered so that it no longer comprises representatives “of the peoples of the States brought together in the Community” (art. 189 EC Treaty, 107 EURATOM Treaty, 20 ECSC Treaty), but “of the people of the Union”. Furthermore, the unequal allocation of seats to the member states ‑ unequal because it is disproportional to the populations of the member states - must be reduced as progress is made towards integration. ^[73]

70.   In order to implement the fundamental value of human rights / human dignity, the union’s constitution must guarantee basic rights and ensure their effective protection. The constitution will thus need a comprehensive article addressing basic rights. That article should not merely content itself with ensuring that the appropriate legal mechanisms are in place: its wording should also invite those who read it to identify with the union, as the constitution’s integrative function requires. By contrast, an elaborate catalogue of basic rights will only be appropriate if it is the result of an intensive process of exploration and consolidation of the union’s identity, widely and actively supported by the public. The White Papers produced by the Convention instituted by the European Council should not, therefore, automatically result in the enactment of a catalogue of basic rights. Rather, they should serve as the basis for a European discussion of basic rights. The practice of signing international conventions on human rights is not called into question, however, since it provides additional protection for human rights. In particular, it is no less appropriate for the European Union to ratify the European Convention on Human Rights in complement to its own basic rights system than it is for its member states to do so.

71.   To ensure that the rule of law governs the application of competence norms, the constitution of a free and democratic supranational union should not contain subsidiary supplementary competence norms which follow the example of arts. 235 (now art. 308) EC Treaty, 203 EURATOM Treaty, 95 ECSC Treaty. If norms of that kind are included, they should, at the very least, be tied to restrictive material and formal criteria, so that their effect is mitigated by the rule of law. It would also be worth considering introducing an extraordinary right of appeal for member states in questions of competence, according to which the Court of Justice would be required to re-hear a competence question in a special procedure, sitting with an extended bench (with judges drawn from member states’ supreme or constitutional courts, for example). Implementing the ideal of the social state as a fundamental value of the union will require that the constitution contain either a general principle of social justice and welfare or social basic rights, in order to counterbalance the effect of those structural principles of economic policy and those basic rights and freedoms which are directed towards free economic activity. Appropriate competences and financing instruments must also be provided for. However, social pressure is a significant element of the defence of social justice and welfare in supranational union and state alike. A supranational union’s constitution can play only a supporting role - for example, by emphasising the socio-political role played by unionwide interest groups like trade unions, employers’ federations, professional groups, etc, in the way that Art. 191 EC Treaty already does for political parties. ^[74]

72.   In the following work, a picture of a new form of organisation emerges. It is a complicated and unusual form of organisation. Again and again, it demands a high degree of intellectual effort from anyone trying to come to grips with it. Yet Europeans wanted the strength of a geo-regional community in response to the challenges of geo-regionalisation and globalisation, but refused to question their fundamental values or forfeit national idiosyncrasies. They have found a solution which largely achieves the former without sacrificing the latter, opening the prospect of a gentle transition to a federal European state. The corollorary is, however, that politics, practice and scholarship will need to keep rising to the challenges posed by the exigencies of transfer and innovation, breaking up, adapting and extending traditional, closed conceptions of legal science and political theory. But how could anyone expect such a solution to be easy?

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