*** What is a constitution?

And what distinguishes the constitution one can or would like to envisage for the Union from the Treaty which, since the establishment of the European Communities, has been the basis for the development of the politico-institutional system that at present characterises the European Union?

The Treaty is based on the various agreements between Member States negotiated by several intergovernmental conferences and ratified by the national parliaments since the 1950s. It is therefore a fact of international law. The methods of diplomacy were adhered to when the Treaty was negotiated and will apply as it is further developed. In this process the Member States are and remain formally sovereign, even though in the Treaty itself they declare their readiness to accept a quite far-reaching surrender of sovereignty in an increasing number of policy areas.

The Treaty, the original intention of which was to establish a union of states, even though at the very outset it contained provisions which looked beyond that to a union of peoples, has, as a result of the amendments to it over the years, expanded to embrace an increasing number of matters which (alongside and underpinning the international or supranational union of states) go to make up a union of citizens: the direct election of the European Parliament, the growing expansion of parliamentary co-decision, the introduction of Union citizenship, the establishment of the Committee of the Regions, the incorporation of subsidiarity as a guiding principle, and the commitment to the "principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law".

This development has aptly been described as the "constitutionalisation" of the Treaty: for the Treaty is increasingly taking on the characteristics of a constitution. But even if such constitutionalisation were to be continued by future intergovernmental conferences, the Treaty would lack two important preconditions for becoming an actual constitution which cannot be attained in the manner prescribed in the Treaty itself.

The first and most important condition is the legitimisation of the consensus that would need to be embodied in such a constitution regarding the form of the "European Union" as a political entity or polity, its principles, the rights and duties of its citizens, the rules and standards generally applicable, the opinion-forming and decision-making processes, the tasks of its institutions, of the Member States and of their institutions at various levels, and the way in which all this is to function. At issue here is nothing less than laying the foundations of this Union's statehood. But the legitimisation of the Union as a political entity akin to a state can only be achieved by way of a public debate and democratic decision-making. Instead of the diplomatic approach paving the way to the Treaty, the constitution therefore requires a democratic procedure.

The second condition is the transparency or readability, the intelligibility, the clarity of the text describing the Union's political and institutional set-up and its foundations. All of that is missing in the text of the Treaty because it is the result of negotiations, tactics, reconciliation of interests, compromises - in short, of diplomacy. Only open deliberations about the best approach, the appropriate wording and the right system can produce a text which, in the judgement of citizens, is valid not only in a referendum but also on a lasting basis. The citizens should be able to feel being a part of the Union. And they should accept the Union as their own.

*** Can there be a European constitution?

Is it possible to imagine for a union of states and peoples with different cultures, languages, experiences and identities a constitution which presupposes democracy, since it is said that there can be no European democracy and therefore no European constitution either which would establish a European polity akin to a state as long as there is no European demos, i.e. no European people?
This is a very fundamental question which is based on a very fundamental assertion. At any rate, assertion and question appear to be very fundamental. However, on closer consideration the issue boils down to a matter of definition: what is to be understood by demos/people? Should the concept be applied only to what it has been taken to mean retrospectively or also to something which we can envisage developing in the future?

It is obvious that we cannot manage the future if we make our political judgement dependent only on what we know from the past. Because we are caught up in an unstoppable historical process, and we therefor should not insist on everything remaining as it was yesterday or is today.
If we look ahead, we can plainly recognise a European demos, the European people, in the shape of the citizens of the European Union: in many ways they are underpinning the building of the Community and its institutions; Community policies are aimed at their welfare; they are increasingly organising themselves into all kinds of transnational associations, parties, networks, groups and institutions; a European society of citizens is being formed and with it - assisted not least by the headlong developments in information technology - a European public.

Of course, the people or citizens of the Union have not yet developed the degree of consensus-forming and self-awareness nowadays characteristic of the traditional nation states. But even the peoples of nation states had first to acquire the identity which binds them together today; and, incidentally, considerable differences are discernible between countries in terms of both the duration of this integration process and the degree of integration attained.

In other words, from a historical point of view, the concept of demos is relative and "democracy" is equally something relative, taking on as it does a wide variety of forms. European transnational democracy is bound to take a different form from German, French or British democracy. This is why we must not, for example, expect the European Parliament to function like the Bundestag, the Assemblée Nationale or the House of Commons.

*** What is the European Union?

But do we need a constitution for the European Union at all, bearing in mind that the existing procedures laid down in the Treaty have been quite successful and are also adaptable? Before we can sensibly answer this question, we must try to see what this European Union really is. How can we define it? What is the driving force behind it?

First of all, it is certainly a political community of states which organise their unity of action partly according to rules of international law and partly according to federal principles. But at the same time, the Union is also a polity organised according to democratic principles that has the task of satisfying the needs and interests of its citizens.
So we can speak of both a union of states and a union of citizens endowed with politically legitimate and responsible institutions: a Parliament, which expresses the will and the expectations of citizens, a Council of Ministers, which represents the interests of the Member States, a Commission, which endeavours to define the Community interest and the common good, an Economic and Social Committee and a Committee of the Regions, which represent specific interests and play a consensus-forming role, with the former representing the organised civil society and the latter the territorial collectivities, and - not least - a Court of Justice, which secures compliance with the rules and laws in force in the Union.

The task of this Union is to manage, by way of the policies and initiatives launched by its institutions, the major tasks which cannot be managed by the Member States alone.
This works well in the policy areas to which, in the context of the interplay between the institutions, the Community method lends itself, namely whenever the Commission, guided by the interest of the Community, can present a proposal which is then discussed by the Parliament and the Council of Ministers as the two equal-ranking legislative bodies, is possibly supplemented and improved (in agreement with the Commission) and is finally adopted by majority. A conciliation procedure ensures that conflicts between the Council of Ministers and the Parliament are resolved.

This method works for the first pillar of the Treaty, i.e. for subjects relevant to economic policy, including questions relating to monetary union. But it does not yet work either for the second pillar, i.e. the common foreign and security policy, or for the third pillar, justice and home affairs. For these two areas, the intergovernmental method is still the rule. That means cooperation between governments, with the Commission more or less excluded as a proposer and conciliator; the principle of unanimity prevails; Parliament is virtually excluded from the opinion-forming and decision-making process.

It has often been quite patently demonstrated that the Union is incapable of prompt, convincing and transparent decisions whenever it operates according to this intergovernmental method. For the interest of the Union is neither the sum of the interests of the Member States nor their lowest common denominator; it cannot therefore be defined in a negotiation where every participant has the right to use its veto.

*** Why do we need a European constitution?

If the Union is to become effective and successful in the areas for which it has assumed responsibility in line with both the declared will of the states (or their governments) and the will of the citizens, we will also have to allow it to apply the Community method generally.
But this can be done only within the solid framework of a constitution. For here, the Member States definitively transfer their sovereignty (or what is left of it, i.e. essentially its formal aspect) for the policy areas concerned to the Union's institutions, although they do themselves participate and have a say in the decision-making of these institutions, and this is why we can refer to this as Community administration of nation-state sovereignties.

Consequently, the transformation process which the Community (or Union) is experiencing as it moves from a diplomatic to a democratic organisation has to be accompanied by the Treaty being transformed into or superseded by a constitution. Ultimately, the goal is the establishment of a transnational federation, the completion of the European federal “state”. Clearly, this federal or federative "state" cannot be a copy of the nation state which we know from recent history or a copy of any existing federal state. States organise themselves in very different ways depending on the place and time. The very concept of state is changing. In this context, by “state” we mean an entity (or polity) which is sure of itself and is therefore also capable of acting internally and externally.

There is a number of pressing reasons which suggest, as we look to the future, that an urgent start should be made on providing a constitution and accepting the Union becoming a state":
ª% One point to be mentioned here is the prospect of enlargement of the Union, which can be successful only if we are clear about what is to be enlarged or rather what kind of union the new members are joining.
ª% However, the enduring success of monetary union also depends on whether we manage to create an integrated framework for the Union's existence and action. This is because, with monetary union, a complete federal subsystem covering a central policy area has been implanted into the Union's unstable three-pillar structure, creating an asymmetry which needs to be remedied.
ª% Next, it is urgent to legitimise, strengthen and integrate the Union's political system; this need stems from the ongoing process of globalisation, which the Europeans can shape or help to shape only if the Union acquires an appropriate form, a clear profile and an identity and if it is recognisable as an actor on the world stage.
ª% And, finally, the Union needs a constitution in which to embody the grand idea, the vision, which we Europeans intend for Europe in the 21st century.
The era of individual projects, with which the Community and the Union were built and which are still being further developed, is over. The shell of the building is now standing. The European Coal and Steel Community, the Atomic Energy Community, the Economic Community, the Single Market, Monetary Union, the pillar of Common Foreign and Security Policy, the pillar of Justice and Home Affairs: everything is under one roof. Now the driving force has to be to organise in the best possible manner this European house viewed in its entirety, and the living together in it.

*** What kind of constitution?

Having answered in the affirmative the question of whether we need a European constitution, we can at last turn to the question of what form that constitution for the Union should take. Now, what kind of Europe do we want? Presumably, a Europe which acts as a Community in all those areas in which the Member States themselves (because of the scale of the problems) can no longer act alone or are able to act only as a Community, in unison with the other Member States.

But how should this Europe be organised? Probably as a union organised on the basis of federal principles and endowed with a democratic political system which, through its institutions and laws, guarantees internal and external security and tackles the major tasks that cannot be managed by the Member States alone in a manner which the citizens accept as commensurate with their interests.

Given the complex conditions of the integration process in the Union, only a democratic and federal order offers any prospect of success in tackling the urgent practical/political problems and, at the same time, in rendering Union citizenship meaningful. It alone can give expression to the intrinsic nature of European Union, namely, the constant effort to create unity out of diversity.

The seeds of such a federal and democratic order are already sown in the existing structures and institutions, although the building of Europe, which is our concern today, is essentially a creation of diplomacy and technocracy. What it is to become, i.e. the European Union of the 21st century, needs democracy and federalism as the main motivating and creative forces.

Until now, the prime focus has been on integration, i.e. on bringing Member States and their policies closer together. In the future, the emphasis will instead be on how to arrange the common home and on the direction and management of this building and of the communities living in it.

The European constitution which we need to describe the system of a democratic and federal union should be flexible and open so that thie young European polity, still very much in its formative stage, can continue developing. For this reason we could also call it a basic law, a charter or a constitutional pact. With other words: it should not be a document which engraves the structures of the Union in tablets of stone once and for all.

The European constitution which we need now could be confined to a few key clarifications and statements, i.e. spelling out the principles and values which should guide the European Union, confirming the basic rights and the citizens' rights it intends to guarantee, describing the institutions, procedures and instruments available to it to attain its goals and, lastly, clarifying the respective responsibilities of the various tiers of government (region, nation, Union) and the way they interact in a spirit of solidarity and subsidiarity.

*** How do we get to the European constitution?

The path from Treaty to constitution can involve repeated revision of the Treaty, with the pace of progress being determined by the traditional procedure of intergovernmental conferences. But this is not enough to convert the Treaty into a constitution which satisfies democratic aspirations. The systematic approach required, the associated procedural transparency and, above all, the indispensable legitimacy of the constitution can be achieved only by public debate and democratic decision-making.

There is another possible approach to providing a constitution which has the advantage of being rooted in the system of the Treaties in force, i.e. application of the Community method. In other words, the Commission (possibly backed by a group of experienced and generally acknowledged "wise" persons) develops a proposal which is discussed and adopted according to the co-decision procedure involving the European Parliament and the Council of Ministers of the European Union.

However, it is self-evident that the most appropriate path to a constitution which would establish the European Union as a democratic and federal "state" (or polity) involves the convocation of a constitutional assembly which, by way of public consultation, produces a draft that would have to be ratified in each of the Member States of the Union according to its tradition or order. Following the successful example of the Convention which elaborated the European Charter for fundamental rights, this assembly could be composed of members of the European Parliament, of the national parliaments, and also of representatives of the European Council and the European Commission. Starting from what is laid down in the Treaty and can therefore be regarded as the Community acquis, this constituent assembly (or Convention) should formulate and adopt the draft constitution within the context of a public exchange of views.

Given the terms of the Treaty, all three paths described can be embarked upon only if the governments of all the Member States are in agreement. This means that the first task must be to form a consensus on the procedure to be followed. Of course, the question is whether the governments of the Member States are ready to give up their role as "masters of the Treaties". If the European Union is to endure, they must at some moment make up their minds whether they wish to bring themselves to take this decision. And if not all governments are ready to work their way from Treaty to constitution, then those which are ready to do so will at some juncture probably feel compelled to anticipate this move and to form a constitutional community within the Union.
Unfortunately, not all leaders have yet recognised that we need a constitution (or a basic law, a charter or a constitutional pact) for the European Union. But the feeling that such an instrument is needed and the awareness that something like it is missing from the Union are becoming widespread. The way in which the question of subsidiarity, for example, is being discussed indicates that what is really at stake here is the issue of a constitution.

The rapid succession of intergovernmental conferences over the last fifteen years (Luxembourg 1986, Maastricht 1992, Amsterdam 1997, Nice 2000) to discuss the revision of the Treaty is evidence that the question of a constitution is in the air. The leaders at the various tiers of the Union's political system should not evade it any longer. Some of them have started reluctantly to speak about the necessity to go ahead. This is quite encouraging.
The fact that there is no consensus on the question of a constitution must not result in a failure to debate the matter and to discuss its conditions. For the necessary consensus can be formed only as the result of a constitutional debate, and it is high time that such a debate were held.

The identity of the European Union will be considerably reinforced if the claim made on its behalf to the effect that it brings together the whole of Europe is also honoured in practice in the years ahead by a successful enlargement that takes in the states and peoples of central and eastern Europe. But this Union can achieve credibility internally and externally only if it is constituted in such a way that it can effectively help to resolve the problems of our continent's people, societies and states and those of the world.

International Conference of the European Association of Researchers on Federalism, Salzburg, 21./23. September 2000