For several weeks now we have noted a renewed attention to the revival of Europe’s founding process. Now that almost two years have passed since French and Danish voters rejected the text which was drawn up by the Convention established at Laeken in December 2001, it has been suggested that some procedures should be reactivated. Several politicians have hypothesized that if there is not homogenous adherence on the part of member countries, then it would be better to start over at double-speed and abandon the philosophy of “swimming or sinking together”. Any reflection on the dynamics of European unification is not only useful but necessary. It’s for this precise reason that renewal of the founding process must deal with several basic choices which regard both merit and method.
First of all, a widespread consensus regarding which formula to use is needed: it is well-known that federalist approaches, which would move towards the establishment of a true European state armed with all the characteristics of sovereignty – including a constitution – have cross-bred with the functionalistic method which is so dear to Monnet. That method tends towards gradual and pragmatic growth, in which there are no precise stages nor precise roles defined for the bodies; the approach is intergovernmental, oriented towards a dimension of cooperation between states. We have also seen nationalistic or sovereignistic expounding of the British kind, first from Major and then from Blair.
The 2005 draft of the constitution attempted to conciliate the different methods in the arbitrational wording, in which “The Union respects the member states’ national identities, which are tied to their basic political and constitutional structures, including the system of regional and territorial autonomies” (article 5). If it were possible to agree on one clear strategy, then the problems of drawing up the next constitutional text would be solved, or at least we would start to move in that direction. Let’s try and review just a few of the main unresolved issues. The separation of powers, which would allow for better articulation of the functions of the Union’s bodies, efficient organization of the system of sources, and provide transparency to the entire regulatory production, must be pursued with decision, in view of the obsolescence of the current network of attributions. But the objectives need to be clarified.
Can the four institutive Community and Union treaties (Paris, CECA, 1951; Rome, Euratom, 1957; Rome, CEE, 1952; Maastricht, UE, 1992) be repealed, and with what consequences to existing norms? Can revision of the new fundamental acts, at least from a certain point on, be removed from the will of the member states’ representatives? Can the rights, which are affirmed in the Nice Charter and then repeated in the text of 2005, be affirmed erga omnes (universally), like in a real bill of rights, or only towards institutions?
Problems like the identification of common values – a membership criterion for member countries and new admissions – and of symbols which can generate the identification of a European demos, which always seems to be missing during years of gradual growth guided by bureaucracy, are mere consequences of the basic choices regarding the new political reality’s way of being which should come to light. There is another consequence, fundamental for jurists, which only comes from choices like these: will a real constitution be born, or just another treaty? Towards the end of work on the Convention while talking with journalists, Giuliano Amato jokingly asked himself if the text being drawn up was male, like a treaty, or female, like a constitution.* With a veil of disappointment he decided that it was the former. May the process of reconsideration begin once more; most legal and political cultures in Europe are ready to face it. But let’s hope that this time the genes of the newborn are primarily, or exclusively, female.
Translator’s note: In Italian, “il trattato” or treaty, is a masculine noun, while “la costituzione” or constitution, is feminine.
by Giuseppe Franco Ferrari,
full professor of public law at Bocconi