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Published: Fri, 02 Feb 2018
“Critically assess of the ‘constitutional’ nature of the EU
“Its citizens have a wide range of rights, but these have been granted to them rather than demanded by them.”
The question of the constitutional nature of the European Union (EU) contains loads of discussion. Even though the Constitutional Treaty failed, the debate did not stop. Can we still talk about a European Constitution? Or are we only allowed to consider the EU as being constitutional in its nature? Constitutional nature is therefore not the same than the terminology Constitution. It is more understood as fulfilling certain criteria which necessarily are contained in a Constitution. Constitutional nature, or differently worded constitutionalism, is included in the term Constitution.
In order to maintain the realistic perspective and not loosing itself in theory, one has to ask what we can learn out of the failure of the Constitutional Treaty. Therefore, we have to think beyond state-related systems. This are question upon this essay dwells.
Reading articles about the constitutional nature of the EU may create the impression that most scholars compare the European system to the familiar constitutional state systems, to a greater or lesser extent.
The classification of the EU is based on a certain constitutional doctrine. For some authors, the EU is an international organisation.  For other it represents a ‘supranational federation’  or differently worded just a ‘federation’.  Some among the same line of approach use the term ‘federal union’  in order to describe the European phenomena. Most commonly, the EU is termed as an organisation “sui generis”.
At this point it will only be pointed out that it has been elsewhere convincingly argued that the EU is today at least something more than an international organisation.  The terminology ‘federal’, implicitly invites to draw a comparison with the state. This is due to the fact that federal systems until now, in constitutional-making context, were mostly associated within the state system. The author of this paper is aware that each of the theories has validity of deeper consideration. However, the emphasis of the paper is drawn on the question how to think beyond state-related systems. Therefore taking theories into consideration which invites to a strong association with the state would go beyond the scope of this paper.
The term “sui generis” invites us not only to compare it to the state but also to an international organisation. However, naming something ‘sui generis’ implies two things: First, none of the known systems do fit entirely and therefore the term highlights that it is different. Secondly, it leaves a gap of understanding. Does the terminology ‘sui generis’ give us any definition to understand what is meant by that ‘different’ system? Consequently, an entirely comprehension of the EU is not assured.
How should the citizens of Europe understand what the EU means if the scholars among themselves do not agree?
The purpose of the essay will be to try where comparison between the EU and state-related systems should stop as it does not help us find a good conceptual framework for the EU. The EU is neither a state nor is it meant to become one.  Therefore, it cannot fulfil requirements of a Constitution as if it would be a state. This has also been painfully taught us by the failure of the Constitutional Treaty. However, until the parting way of the EU and respectively the state and international organisation, state-related tools are helpful.  At this parting way, the author invites to think about something new. In order to evaluate this thought, the work of Pernice will be a leading help.  However, the author understands the definition of the fictive social contract among the European citizens, which establishes for Pernice from “where its [EU] binding power and authority lies”  differently. The German BGB differentiates between the foregoing agreement  , named as agreement, and the subsequent agreement  , termed as approval. Its definition will be followed in this paper. If the author understands Pernice correctly, his suggestion is to consider the social contract as an agreement which democratically legitimise the EU from the beginning, the latter should be considered as a ‘composed constitutional system’, namely as a foregoing agreement. This paper will evaluate, why this foregoing agreement is not the right approach. In the opinion of the author, it has to be understood as an approval. In order to make this line of thoughts clear, the paper will be divided into four parts.
In Part I the author will give a short overview where we stand today. In Part II, it will be explained how the long road towards the Lisbon Treaty was introduced. The decisive decisions of the European Court of Justice (ECJ) will be shortly mentioned and an evaluation of its consequences, which influence the EU even today, will follow.
In Part III, the author evaluates why we have not a Constitution in Europe and therefore it invites the reader another time to question the appropriateness of the comparison to the state.
In the last section, part IV, the idea of Pernice, explained in his work “The Treaty of Lisbon: Multilevel Constitutionalism in action” will offer a perspective how to assess the EU without going back to traditional state-related thinking. In this part, the reason why the author is of the opinion that the social contract has to be understood as an approval becomes clear.
It is important to clarify that the author considers the constitutional process of the EU in a chronological way. By that is meant, that the EU has been launched as an international organisation. The ECJ vested the EU with features which opened the door towards a constitutional road. However, this introduction by the Court has to be understood as a move which is not based objectively on the Treaties. An International Organisation is among States and not among citizens. Therefore, first moment to think more about a constitutional nature in regard of the EU in order to feel the need that the authority has to be referred back to its citizens, has been introduced by the ECJ. What we need in Europe is to find a ‘fictive’ way back to its citizens from exactly that point, in order to legitimise democratically what happened at that moment and afterwards. This is the peculiarity from the EU which has emancipated itself from international law in order to walk into a ‘composed constitutional system’.
Where do we stand today in the European Union?
In order to understand where we stand today, a short overview about the main features will be introduced.
The EU is a separate legal entity, which is established by law, bound by the rule of law and acts through law in respect of its Member States and the European citizens. The EU is a special kind of body. It not only contains special features and provisions which we cannot find in other international treaties but it also represents an interaction between supranationalism and intergovernamentalism. That is to say, at the supranational level, decisions are taken by its own supranational institutions, whereas in the Council, which represents the intergovernmental level, bargains with the Member States as a general rule.
Whenever in the beginning, politically, stagnation emerged on the intergovernmental level, the Court was the initiator to fuel the development ahead. Nonetheless, some significant changes to the Treaties were also introduced meanwhile.
The ‘Luxembourg Accord’ showed quite intensively to what extent the stagnation provoked European unconsciousness. After this experience the need for qualified-majority voting in the Council became evident and “was introduced into range of areas which had previously provided for unanimity.”  Furthermore, the European Parliament became part in the process of legislation by the implementation of the ‘co-operation’ procedure, laid out in Article 252 EC  . This was made possible by the Single European Act (SEA) in 1986. The SEA represents the first important step towards the acquisition of the internal market, which had been fulfilled by the Maastricht Treaty in 1992. However, the development did not stop at its initial purpose of economic integration. Case law and treaty amendments increased the scope of European application beyond mere economic concerns. Specific rights and duties had been established, which are binding for all European citizens equally. In particular, it is a matter of fundamental rights, democratic and procedural participatory rights and market freedoms. In combination with direct effect and primacy these European provisions are binding throughout the EU regarding the states and the citizens.
Fact: Constitutionalisation of the EU initiated by the ECJ
Traditional constitutional theory states that the constitutional process is initiated by the people through their agent in the legislature and executive.  The task of a constitutional court is to interpret the constitutional text objectively. The constitutional law has to be interpreted in accordance with its spirit, namely the one given by its founders.
In the beginning, the EU has been established by the Treaty of Rome as an international organisation with the mere purpose of economic integration in order to make war in future impossible. However, the EU developed further. It is now a Union with shared principles and surpasses economic considerations, Article 2 TEU  . In the following section, it will be shown that a significant part of this development is due to the role that the ECJ played along the years.
The combination of the legal outcome of Van Gend & Loos  , Costa v Enel  and International Handelsgesellschaft mbh  , provided an opportunity to the ECJ “to describe the Treaty as the basic constitutional charter of the Community.”  On might argue that the constitutional debate within the European Union found its first source of reference at this point. Even though it was only proclaimed later, on a political level, as a project of a real Constitution for Europe, first by Spinelli  and later on by Fischer  .
Hartley makes the argument that the Court did not only objectively interpret the legal text, but rather interpreted what the law ought to be.  According to him there is no indication in the text that the European law has to be either applied directly or in a supreme way to the law, and even less to the constitutional law of Member States.  This assessment has been contested by some scholars.  For the purpose of this essay, the author considers that Hartley is right in this context. In order to support Hartley’s argument, one has to emphasise that after the decisions, an express disagreement by some Member States had been given against the “idea of European federalism or constitutionalism.” 
The development, introduced by the ECJ, is of peculiarity. It becomes clearer if one goes back in history and takes a short look at the way how national constitution came up. To the author’s knowledge one would not find anything comparable.
Besselink distinguishes two categories of constitutions in Europe: one described as ‘revolutionary’ and the other as old-fashioned ‘evolutionary’ or ‘history’ constitution.  He argues that for example the French, German and Italian Constitutions are of ‘revolutionary’ nature, whereas the British Constitution is more of ‘evolutionary’ character.  Besselink states that the constitutional development of the EU is comparable to the one of Britain.  However, this comparison is not convincing in all its aspects for the reason that in the British context, The Monarch, part of the executive, admits within the Coronation Charter, “that by the mercy of God and the common counsel of the barons of the whole kingdom of England I have been grown king of said kingdom.” In the author’s opinion, it can be described as the first step towards a more constitutional model in Britain.  In the context of the EU, this first step was given by the judicial power. Indeed, the Council, which amends the treaties, is composed of the representatives of the executive of the Member States. Consequently, one could argue that the process has been tolerated by the executive. Therefore, the starting point of an ‘evolutionary’ constitution is still comparable to the one in the EU context. Nevertheless, the initial active step towards a constitutional nature was given in the European context by the judicial branch. In contrast, in Britain the active step towards a more constitutional nature was initiated by the executive. The fact that the initial step was supported by the executive does not alter the first active initiation by the judiciary. Therefore, the comparison concerning the first step towards a constitutional body within an ‘evolutionary’ constitution fails. This supports the conclusion that the EU is from its beginning something new and therefore peculiar. This peculiarity distinguishes the EU from the state. Consequently, the EU will not simply, by further constitutionalisation, become a super state. The decisive first moment towards more constitutionalism will always be different. The EU is moving to something new, but not to a state as we traditionally understand it. Nevertheless, Besselink is right to compare the overall process, after the different constitutional starting points, within EU to the one evolutionary in character.
Most of today’s scholars seem to accept the starting point of the European constitutionalisation as a fact and do not question it anymore. However, what remains today after the temptation to create a constitution for Europe, is the need to repair what has been introduced as a matter of fact. After the constitutional debate emerged, scholars tried to compare it to the closest fitting system, the state. The temptation to compare the EU to a state was also provoked by the ECJ and its choice of words.  However, at one point this comparison will necessarily fail. As said before, the EU is not a state and will not become one.  Nevertheless, Craig rightly argues that the national constitution is still the best starting point in order to talk about the function which constitutions play in a body politic.  The paper will follow this logic and tries to explain that one has to go beyond state-related understanding and think about postnational constitutionalism, as suggest by Pernice in his work.” 
Controversial: European Constitutionalism
Independently of the first constitutional moment within the EU, it is essential to clarify why from a substantive perspective the Constitutional Treaty was predetermined to fail. It will be pointed out that EU is not vested with all features which we describe as necessary for a traditional Constitution. Nevertheless, this conclusion will not an end the increasing constitutional development of the EU. It will be emphasised that we have to reboot the button after we realised that the EU is not ready to have a Constitution in a traditional sense. That is where we stand today with the Lisbon Treaty.
Constitutionalism has a variety of meanings. Following, a short listing of some views will be given in order to give an idea of its manifoldness. Some describe constitutionalism as an evolution towards a desirable goal, which implies a strong normative component. However it is widely contested what this content implies. Others hold the view that this evolution need to end in a constitution. For others again it is more about the process towards ideals such as freedom, democracy and good governance in a broad sense. 
For the purpose of the essay, constitutionalism will be understood in a descriptive way, namely by looking what features are necessary in order to determine a constitution.  Accordingly, it will be necessary to evaluate the features of a constitution. Raz differentiate between ‘thin’ and ‘thick’ constitution.  He establishes that any law “that establishes and regulates the main organs of government, their constitutions and their powers” has to be understood as a ‘thin’ constitution. 
Do we have a European Constitution?
One might argue that this question is superfluous as the Constitutional Treaty failed. Indeed, a body can be called Constitution; however the mere denomination does not mean that Constitution exists also in a substantive way, which is the decisive criterion for its classification. Even though the formal term is missing, a constitution can exist as long as it fulfils the substantive criteria. Therefore, to ask whether the EU has a Constitution is not a waste of time.
In order to determine a ‘thick’ constitution, Raz indicates seven features as being necessary. First, “the constitution defines the constitution and powers of the main organs of the different branches of government.”  This is coevally the one and only condition of the ‘thin’ constitution. The second feature represents the stability of the constitution. This does not mean that no alteration can occur, however the basic structure for political and legal organs is of durable nature. Third characteristic is for Raz its canonical formulation. That means that the constitution is written. The next attribute is that the constitution is of superior law. The fifth property is its justifiability. That means that ordinary law is revisable of its compatibility with the superior law, which is guaranteed by jurisdictional procedures. If not compatible, the ordinary law is necessarily invalid. The sixth is the procedural aspect of the amendment of a constitution. The process of the revision of statute has to be legally different or rather more difficult than that of ordinary law. Last but not least, “its provision includes principles of government (democracy, federalism, basic civil and political rights, etc.) that are generally held to express the common beliefs of the population about the way their society should be governed.”  [Highlight added]
The Lisbon Treaty is the current law of the EU. Thus, it is only consequent to measure the current law against the above mentioned features. In the following, the paper will give a short overview about Reh’s constitutional assessment of the Lisbon Treaty. Her conclusion is that that “the latest reform moderately bolsters the Treaties’ formal functions; yet, in contrast to the CT, Lisbon adds little in material terms and is decisive setback symbolically.” 
Reh differentiates three categories: formal, material and symbolic. In the first category, she stresses that one cannot talk about one codified document, compared to the Constitutional Treaty. This is first of all due to the perpetuation of the two different texts, now called Treaty of European Union and the Treaty on the Functioning of the European Union. There are additionally declarations, opt-outs and protocols, which seem to fragment the primary law of the EU even further. She also complains that the wording of the treaties is not understandable for all people but only for lawyers.
Concerning the ‘absolute supremacy’ claim of the ECJ, she proposes to question it and even goes so far to state that the changes implemented in the Lisbon Treaty compared to the Constitutional Treaty “sends a clear anti-constitutional message.” In the constitutional Treaty the supremacy clause was incorporated in the text. Now, in the context of the Lisbon Treaty, it can be only found in a non-binding declaration.  It is well known that the claim of supremacy of European law has been at several possibilities controversially assessed by national constitutional courts.  It has been stressed by the ECJ that due to Article 267 TFEU  , a judicial remedy, the uniformity of Community law, as the ECJ has the last say in the validity and interpretation of Community acts, will be ensured. Reh remarks at this point, that the conformity of European law is additionally tremendously disturbed by the opt-outs of Poland and United Kingdom in the field of fundamental rights.
In a second step within her first category, she stresses that some changes has been introduced regarding both the horizontal and vertical level. On the first layer, the European Council gets institutional status.  The Parliament does now elect the President of the Commission;  the College of Commissioners will be reduced from the November 1, 2014.  Article 15(6) TEU establishes a permanent President of the European Council and a change of the voting system had been introduced by Article 16 TEU. She argues that the most important change from a constitutional perspective is the abolishment of the pillar structure.
Concerning the second layer, she points out Article 3, 5 and Article 50 TEU. Here she states that the respect of ‘national identity’, the consequence of the Protocol on the Exercise of Shared Competences and the fact that the Member States can withdraw from the Treaties, supports the argument that the Union ‘lacks of independent sovereignty’.  Further she argues that nothing will be changed by the Lisbon Treaty in a fundamental way, as for example Article 308 EC  will still be found in the Treaty and in conjunction with the abolishment of the pillar structure, and the clarification of competences and stability of the whole Treaty will not be consistent as maybe indented. Additionally, she says that “an institutionalized right of secession introduces territorial flexibility unimaginable in any ‘thick’ constitution and strongly smacks of international law.” 
In her second category she focuses on constitution in a material sense. Here she deals with separation of powers, fundamental rights and democratic participation. She stresses on the interplay between Commission, European Council and European Parliament concerning areas which are traditionally understood to be distinctive in the sense of executive, legislative and judiciary. Here she warns that this obscure interplay will endanger transparency and accountability. Concerning the fundamental rights she states that “the institutionalized human rights opt-out, falling behind core principles of constitutionalism.”  Regarding the criteria of more democratic participation, she point out that albeit introduction of several democratic strengthening, such as citizen’s initiative, greater role of national parliaments, Article 5(3) TEU, does not change the fact that the treaties “are still reformed through unanimous consent by the High Contracting Parties, combined with decentralized national ratification.” 
In her third category, she remarks that the Lisbon Treaty looses constitutional nature from a symbolical perspective if comparing to the requirements of a ‘thick’ constitution.
Her conclusion is that the Lisbon strengthens the understanding of a ‘thin’ constitution but moves backwards to what had been established by the Nice Treaty and was considered by the Constitutional Treaty in the ‘thick’ sense. In her opinion, the introduction of a clear division of competences had been achieved by “curtailing the European area.” 
Where does this conclusion lead us to? Does this mean that the EU as it stands today misses decisive constitutional features and cannot therefore be called a constitutional entity?
Do national Constitutions allow a European Constitution in the future?
Supposed the Lisbon Treaty would have fulfilled all necessary features, what would be the conclusion of Reh? Carrying on her line of arguments, would she not come to the same conclusion than what had been warned for by Grimm? He says that once the EU fulfils all constitutional features the Member States would dissolve and the EU itself would be a super state instead. 
By continuing to assess the EU by comparing it to the state, the results are not out breaking. In order to clarify this line of thoughts, we should have a short look at the national Constitutions and ask ourselves whether from their perspective a European Constitution would be at all possible.
The basic norm of Member States, which establishes their constitution is not as what the EU is concerned a matter of law but of fact and therefore unchangeable. This has been said by Kelsen.  “It is important to note that the basic norm is not the Constitution itself. It is the rule that puts the Constitution at the top of the hierarchy of rules and requires that it should be the ultimate criterion of legal validity.”  Consequently, the claim of supremacy of European law is not valid from the perspective of the national Constitution, as it would change the basis of validity of the national constitutional law. 
However, this mere formal and legal consideration fails short of the larger importance of constitutionalism in the European context. It is for sure a helpful tool, supposed that the formal determined basic law is perfect and therefore no change will ever be necessary. However, the EU might be a reason why the respective national basic norms are not perfect anymore and need to be changed.
It has been stated already that the EU was initially based on economic integration. However, the integration did not stop here. Parallel to th
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