Constitutionalism in Europe
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European Forum, academic year 2003-2004
Overall direction and coordination
Bruno de Witte, RSCAS and EUI Law Department (Director)
Miriam Aziz, RSCAS Research Fellow (Scientific Co-ordinator)
EUI Law Department
Theme 1: The Idea and Dynamics of the European Constitution
EUI Law Department
Theme 2: The 'East' Side of European Constitutionalism
EUI Political and Social Sciences Department
Theme 3: The Constitutional Accommodation of Regional and Cultural Diversity
EUI Political and Social Sciences Department
Theme 4: The Market and Countervailing Social Values in the Constitution of Europe
Themes of the Forum
The theme ‘Constitutionalism in Europe’ encourages the active participation of researchers from the European University Institute in four disciplines: Economics, History, Law and Social & Political Science. It builds on the themes of earlier sessions of the Forum, and is related to the current political debate prompted by the Convention on the Future of the European Union.
In order to preserve a clear focus within this broad theme, the scope of the Forum is limited to the following four distinct but complementary themes:
- The Idea and the Dynamics of the European Constitution
- The 'East' Side of European Constitutionalism
- The Constitutional Accommodation of Regional and Cultural Diversity
- The Market and Countervailing Social Values in the Constitution of Europe
The Idea and the Dynamics of the European Constitution
(Coordinator: Neil Walker)
This theme serves both as an introduction to the Forum as a whole and as an area of research in its own right. It is introductory in the sense that a broad historical and contextual understanding of the idea of European constitutionalism is necessary to do justice to the three more focused sub-themes—the enlargement dimension, the dimension of regional and cultural diversity and the social and economic dimension. It is also an important self-standing area of research in the sense that there are many questions concerning the history, sources and dynamics of European constitutionalism—questions which are given a new and very immediate currency in the present post-Laeken process of proto-constitutional debate—which call for more intense empirical and theoretical inquiry.
These questions include:
The Historical Foundations of a Common European Constitutional Tradition
Europe is the birthplace of the modern constitutional tradition, but is also the source and carrier of a diverse range of constitutional models. Thus there is both a common tradition and a tradition of diversity. How do we make sense of this notion of unity in diversity, or—if you like—diversity in unity? On the one hand, the common elements include the traditions of liberalism, democracy, the separation and devolution of powers, and individual rights. In turn, these common elements may derive from common political and cultural preconditions, and may be influenced by paradigmatic texts and templates, including the revolutionary texts of France and United States (the influence of which has interesting modern parallels in the explicit invocation of the Philadelphian tradition as a source of inspiration for any new post-Laeken text), and the evolutionary tradition of the unwritten British constitution. On the other hand, there are also key divisions and oppositions in the European constitutional tradition, including 'top-down' versus 'popular' sovereignty, centralism versus federalism, Parliamentary versus Presidential Government, rights entrenchment versus legislative or common law rights, judicial review versus political oversight, collective solidarity versus market individualism and positive freedom versus negative freedom. Alongside, and to some extent influencing and influenced by, these divisions are broader historical fault-lines, including the distinctiveness of the civil law and the common law traditions, and of a spectrum of socio-economic regimes ranging from state socialism to market liberalism.
The Influence of the Supranational Dimension
Over the last 50 years, the development of a supranational order—now known as the European Union—has altered the dynamics of European constitutionalism and the factors bearing upon convergence and divergence. On the one hand, this supranational order clearly provides for a new, relatively autonomous and distinctly European constitutional or proto-constitutional order, one which, moreover, borrows heavily from national traditions and reinforces common elements within these national traditions. On the other hand, this innovation also reaffirms the sense of diversity in at least two senses. First, the new supranational order is characterized by its capacity to accommodate diversity. Mutual recognition, the limited direct effect of Directives, subsidiarity, the absence of a Supreme Court, the Three Pillar structure, the flexibility provisions, the absence of an uncontested pan-European
Grundnorm and the continuing accommodation of member state 'sovereignties': each of these speaks to a constitutional experiment unique in its capacity to embrace difference. Secondly, and relatedly, the new supranational order continues to co-exist with national constitutional orders. In that sense, the new European constitutional order is uniquely relational. Unlike the earlier tradition of state constitutionalism, in which state constitutions were self-contained maps of internal normative authority, in the new European configuration both state and supranational orders have as part of their task the development and articulation of intense and intricate relations with other, 'external' constitutional orders. This is both a new European tradition and one heavily influenced by the legacy of older European traditions.
The European Constitutional Idea in Transition
We have reached a phase in European constitutional development where theory and practice are very closely joined. The present post-Laeken process invites, and indeed requires, a high level of reflection on the questions posed above as a way of working out the opportunities and dangers in the making of a new European constitutional order. Of course, any constitutional innovation must look to its past—to the institutional and cultural pathways which led to the point of transformation—but the degree of reflexivity, and also the nature of the tension between continuity and discontinuity in the European case appears to be unique. On the one hand, there is a distinct emphasis on continuity in the present process. The national constitutional orders will remain, while the supranational order cannot discard 50 years of incremental growth. On the other hand, the European process is faced with unprecedented questions of translating the logic and deep structure of constitutionalism—a set of ideas forged in a state setting—to a supranational and multi-level context. That is to say, the existing legacy of European constitutionalism is both a crucially important constraint and a key resource in the making of a new order, and one which by its very (statist) nature is insufficient in itself to the new regulatory context.
The 'East' Side of European Constitutionalism
(Coordinator: Wojciech Sadurski)
The EU has already involved Central and Eastern European (CEE) countries in the debate on a constitution for Europe including the then candidate states in the Convention on the Future of Europe, albeit in a somewhat limited capacity and by making the earlier decision to invite the candidate states to comment on projects for the EU Charter on Fundamental Rights). Has this involvement been meaningful and effective? What (if any) has been the effect of the CEE states' participation in the Convention upon the status and shape of European constitutionalism?
While this question will obviously be dealt with in the European Forum discussions, their main focus will be prospective and long-term. One way of approaching the 'East Side of European Constitutionalism'is by inquiring into the likely effect of the 'habit of constitution-making' in CEE states upon the process of the constitutionalisation of the EU. All CEE states (with the partial exception of Hungary) went through the process of adopting brand new constitutions over the past decade. In contrast to the present member states, the experience of constitution-making, with all that it implies for public discourse about the fundamentals of the organisation of the state and of entrenching fundamental rights, is very fresh in the collective institutional memories of those states. Is this fact likely to affect the contribution that the new member states from CEE will make to the constitutionalisation of Europe?
On a more fundamental level, there is the question of compatibility of CEE constitutionalism with the 'constitutional traditions common to the member states', and how the interaction between these latter traditions and CEE traditions will be likely to shape the future of pan-European constitutionalism. Compatibility can be viewed at different levels: at the level of constitutional texts (are the structures, designs and formulations in CEE constitutions broadly the same as those belonging to the 'constitutional traditions of the member states'?); at the level of constitutional practices (is there a significant similarity in the attitudes of political actors, mainly lawmakers and the judiciary, to the direct binding role of the constitution); and at the level of societal attitudes and behaviour (what are the expectations of the general population regarding the constitution? what are the rankings of values concerning constitutional rights to be entrenched and protected?, etc). In other words, any comprehensive analysis of the 'Central and Eastern Side of European Constitutionalism' must take into account both constitutional traditions, as reflected in the constitutional texts, and constitutional cultures, as reflected in the norms, behaviour and attitudes of legal and political actors and of the population in general.
In terms of the substance of constitutional questions to be raised, it is envisaged that the main focus will be evenly oriented towards the nature of the constitution itself (including the views about the constitutional process, the functions of the constitution, the force of entrenchment as opposed to its flexibility, etc), the principles and ideas on the separation of powers, the status and the catalogue of constitutional rights (in particular, viewed from the perspective of the status and the list of rights in the EU Charter of Fundamental Rights), and the instruments of enforcement, protection, and implementation of the constitution (the design of a judicial-review mechanism).
The involvement of the CEE states in the European constitutional discourse also raises the question of the function of the constitutional interaction between the 'West' and the 'East' of Europe (and, more specifically, of the enlarged EU) in the context of the overall structure of enlargement. Will the constitutional dimension of enlargement reduce or exacerbate the problems related to the accession states inequality of position as compared to the 'old' member states? The problem can be put starkly in terms of equality of different categories of member states within the enlarged EU: considering the large inequality of economic positions of the current and candidate states, what will be the likely relationship between the constitutional and other dimensions of enlargement? Will the candidate states (or the current members) engage in a strategic action in which positions on the constitutionalization of Europe will be used as a leverage to affect the negotiation process and the post-accession adjustment of the new members to the EU?
The list of questions to be explored within this segment of the European Forum is not restricted to the issues just mentioned: it is meant to be open-ended, and driven as much by the organizers' expectations as by the Fellows' insights and proposals.
The Constitutional Accommodation of Regional and Cultural Diversity
(Coordinator: Michael Keating)
The focus for this theme is on the constitutional management of diversity in the new Europe.
The transformation of the European state has progressively de-linked spheres of activity that were previously accommodated within the boundaries of the nation-state. These include the economy, culture, political spheres and processes, and institutions. Economic change is increasingly understood as both a local and a global process, with the state featuring as one level among many. Cultural identities and practices are increasingly plural, as old identities are revived, new ones invented and previously neglected ones become salient. New political spaces are opening up, within and beyond the state. Institutional restructuring has produced new and complex patterns of governance, again at multiple levels. Thus, political mobilization, representation and functional systems are dispersed. Some theoretical interpretations see this as representing the end of territory, whilst others interpret it as restructuring the notion of territory, which remains a key element in shaping public life.
This presents a challenge to our understanding of constitutionalism, which has often been identified with the state. It has tended to assume the existence of a uniform polity, whether unitary or federal, and often of the existence of a relativelysingle people or demos, united in culture and political identity. The constitution thus provided a common framework for the polity, while the polity itself served as the main instrument of interest intermediation. This thinking underlies many of the calls for a ‘European constitution’ as a common framework for the new European order.
Annother tradition in constitutionalism, however, sees it as a way of managing diversity. Thus, far from requiring a homogeneous polity, it comes into its own precisely where such conditions do not exist. A third tradition sees constitutionalism as pluralist, a way of thinking about political order rather than a fixed set of institutions, flexible enough to accommodate change and allowing for the existence of rather distinct principles of legitimacy and authority.
This section of the Forum focuses on these issues at a general level and also examines the impact of territorial and cultural diversity on constitutionalism in particular contexts. The issues, some of which overlap with the other three themes include:
- The practical and normative implications of constitutional pluralism and asymmetrical constitutions;
- The role of sub-state actors in European constitutionalism and the role of regions in the European polity
- The growth and recognition of non-territorial forms of government and group rights as means of accommodating cultural minorities
- The intermediation of political and economic power at new levels (local and transnational).
The Market and Countervailing Social Values in the Constitution of Europe
(Coordinator: Martin Rhodes)
The achievement of EMU and the continuing liberalisation of European markets in products and services have refocused attention on the issue of European social values. Political scientists and lawyers alike are engaged in analysis of the actual and potential impact of internal market and competition law on national welfare regimes amidst much speculation as to the present and future of what is often referred to as the EU’s ‘social constitution’, ‘social contract’ or ‘social dimension’. The process of EU enlargement also raises numerous questions about the EU’s broader position on social and human rights.
This section of the Forum will focus on two interrelated areas. The first is the relationship between social solidarity and the internal market; the second is the creation of new instruments of social policy governance.
a) Social Solidarity and the Internal Market
Although frequently assumed to have been marginalised by the creation of the EU’s ‘big market’, a ‘European social dimension’ of considerable significance does already exist. Over the years, a loosely-structured regime of pan-European rules and policy making has been put in place, with:
- Important substantive elements in the form of Community legislation and European Court of Justice case law—the latter playing an especially critical role in linking social rights with labour mobility
- Procedural rules and innovations (especially with the expansion of qualified majority voting and the social dialogue provisions of the Maastricht Treaty)
- Methods of enforcement (strengthened by Maastricht’s empowerment of the ECJ to fine dilatory member states)
The result has been the creation of a multi-tiered policy system and a transition from sovereign to semi-sovereign welfare states, with key elements of European policy (on freedom of movement, employment protection and gender equality) implemented across the member states.
Within this system, the balance between the creation of a ‘market’ in social goods and services and the preservation of institutionally autonomous welfare states—especially in the areas of health systems and social insurance—remains controversial. The principle of social solidarity may conflict with that of market freedom; but there may also be means of accommodating the two. Of particular interest are the following questions:
- How is balance changing between ‘market’ and ‘solidarity’ in legal and legislative activity in the EU?
- What are the implications for social sovereignty in different types of welfare state?
- What is the relationship between social rights and other rights (as set out in the EU Charter of rights)?
b) New Instruments of Social Policy Governance
Since the late 1990s, there have also been initiatives to create a new role for the EU in co-ordinating welfare policies and systems on the one hand, and macroeconomic management with social and employment policies on the other. These initiatives have important implications for governance and the ‘constitutionalisation’ of social rights, as well as for the balance between the power of the market and the strength of countervailing social values in the European political economy.
Regarding pan-European welfare co-ordination, an attempt is being made to build on and extend to other sectors the so-called ‘Luxembourg process’ that monitors EU employment performance via National Action Plans. Dubbed the ‘Open Method of Co-ordination’ (or OMC), this process is based on ‘soft’ mechanisms to promote reform in ways that may be more flexible and better adapted to Europe’s diverse social systems. These include the use of quantitative and qualitative indicators as benchmarks, linked to periodic monitoring, evaluation and processes of peer reviews to promote ‘mutual learning’ in policy making.
In terms of co-ordination across policy areas, since the Lisbon Summit in Spring 2000, social protection is being linked much more closely than in the past with employment and macro-economic policies. This builds on the Cologne process that addresses the issue of policy interdependencies within EMU. It specifically promotes relations between European employer and union representatives, the Commission, ministers of finance and employment, the European Central Bank, and governors of national central banks, focusing on the interconnections between wages, monetary, budgetary, and fiscal policies.
All of these developments are recent and weakly institutionalised but still they raise a number of critical questions about the strength and potential of an EU ‘social constitution’ as well as issues of effectiveness and legitimacy. This especially so in light of the Commission’s White Paper on Governance which seems to step back from OMC as a mode of governance (while still emphasising the role of ‘partnership’) and to stress the continuity of the traditional ‘community’ method. Of particular interest are the following questions:
- What are the lessons to date of the use of the OMC in the social and employment policy areas?
- How and with what effect have the actors at the EU level been linked to the new post-Lisbon co-ordination endeavours?
- What issues of regulation are raised by the emergence of soft law as an instrument of policy making and co-ordination, and what problems are raised in relation to the use of more traditional instruments?