The Jean Monnet Program



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In short, the contemporaneous emergence of the enlargement and the constitutionalization processes is anything but coincidental. The EU constitution may be viewed as an attempt to increase the credibility of interstate commitments through the introduction of a binding mechanism that would effectively reduce the threat of accession countries (present and future) advocating worldviews and policy preferences that diverge significantly from those favored by core EU member states. A departure from the treaty route to the entrenched constitution path would increase certainty and predictability within the enlarged EU, and would provide self-interested, risk-averse power holders with formal protection against the potential threat and uncertainly embedded in the enlargement process.

How did the whole constitutionalization process come about? The immediate post-Nice understanding was that the agreement paved the way for enlargement and completed the institutional changes necessary for the accession of new member states. The general consensus was that another inter-governmental conference (IGC) was needed to consider four issues: a more precise delimitation of powers between the EU and its members, the status of the Charter of Fundamental Rights, simplification of EU treaties, and the role of national parliaments in the European architecture. These statements notwithstanding, the drive towards full-scale constitutionalization gained momentum in late 2000 or early 2001. At least timing-wise, the emergence of the enlargement and the constitutionalization processes was indeed synchronized.

Alarmed by the aforementioned concerns, EU federalists launched a successful drive to turn a limited discussion of the Nice “leftovers” into a full-scale effort to write a constitution. That is why the 2001 Laeken summit set up a convention on the future of Europe to precede the IGC. The assumption was that this would generate the momentum to write a constitution. An accelerated timetable was also pushed through. At Nice, it was agreed that the IGC would take place in 2004. That date was brought forward to 2003, largely so that the work on the constitution could be completed before the newcomers joined the Union. Consistent with this, at the 2003 constitutional convention, every effort was made to limit the influence of the newcomers. Their representatives were present on the convention floor, but not on the 12-person presidium that did the crucial work of drafting the text.45 It is no coincidence that some of Europe’s most prominent federalists, such as Joschka Fischer, Germany’s foreign minister, and Guy Verhofstadt, Belgium’s prime minister, have been pushing hardest for the convention’s draft constitution to be adopted swiftly and without alteration. Indeed, as Jack Straw, Britain’s foreign secretary, has recently explained, a constitution was needed “in order to make enlargement work better.”46 Or in the words of Gerhard Schröder, Germany’s chancellor, “Enlargement and the constitution are two sides of the same coin.”47

The deep concerns among leading member states as to the possible threat to their hegemony posed by the EU enlargement is also manifested, quite ironically, by the emergence of the so called “enhanced cooperation” discourse over the past few years. Worried about a loss of influence in an enlarged EU, a few leading member states, most notably France and Germany, have been pushing for the formation of a “hard core” of countries, which would forge ahead with deeper integration and closer links on tax harmonization, justice, and home affairs. Like the emergence of the formal constitutionalization discourse, the contemporaneous emergence in the late 1990s of the enlargement prospect and the enhanced cooperation discourse is anything but fortuitous. The possibility of closer cooperation among member states that wish to move ahead with faster integration in certain policy areas had not been explicitly and formally recognized before the Treaty of Amsterdam (1997). The legal framework for closer integration was further reformed and institutionalized through the 2000 Treaty of Nice. The underlying rationale of all these provisions, as well that of the less formal yet increasingly popular enhanced cooperation discourse has been to allow core member states to differentiate themselves from the crowd, and create secluded enclaves of deeper cooperation within the EU. In other words, just as plans for enlargement were materializing, the legal framework has been laid for the formation of selective fast track integration within a core group of member states.

The cautious (not to say suspicious) attitude of established member states toward the upcoming enlargement (and their motive in pursuing the constitutionalization path) is vividly illustrated by the across-the-board invocation of a provision in the EU agreement that allows member states to impose “passage limitations” on citizens of the accession countries for up to seven years from the date of enlargement. Even considerably progressive prime ministers such as Britain’s Tony Blair and Sweden’s Goran Person, succumbed to immense public pressure, and introduced a series of limitations on the incoming stream of cheap labor from accession countries, as well as restrictions on the eligibility of newly arrived immigrants for welfare. “Whomever is unable to legally support himself will quickly find himself outside of Britain” declared Blair in February 2004. Workers from the eight central European accession countries will be able to work in Britain, but will not be eligible to receive welfare for the first 12 months of their residency. They will have to register in a special employment database, and prove that they actively work during their stay.

Likewise, Sweden recently introduced a five-year limitation on the number of immigrants it will admit. Belgium, Finland, and Denmark announced a postponement of at least two years before they will open their gates to workers from the accession countries. Denmark also went on to introduce a law that requires incoming immigrants to find work within six months of arrival or face deportation. The Netherlands introduced a cap of 22,000 immigrant workers per year. In short, suspicion and hostility toward the accession countries’ citizenry are bubbling under the surface.

The “hegemonic preservation” rationale is also evident in some of the specific choices made by the drafters of the constitution. At the very least, the proposed constitution marks the formal entrenchment of the criteria for joining the EU adopted at the Copenhagen Summit of the European Council in 1993; to wit: a) proof of respect for democratic principles, the rule of law, human rights, and protection of minorities; b) functioning market economies that are able to cope with the competitive pressures and market forces of the EU; and c) the ability to take on all the obligations of membership, including incorporating into their national legal system all the laws agreed by the EU.

The centralizing nature of the Constitutional Treaty is further illustrated by the fact that contrary to the Laeken aspirations to make the union “more democratic, more transparent, and more efficient,” no powers have been repatriated to member states. Even the most radical of the mechanisms for repatriation of power – protections for so-called “subsidiarity” (aimed at ensuring that various policy issues are dealt with at the most appropriate level) – are weak at best. Under the newly adopted “early warning system,” for example, national parliaments are granted a six-week window to scrutinize European legislative proposals to ensure they conform with the principle of subsidiarity. Even in the unlikely event that a third of national parliaments object to a proposed EU law, the Commission’s only obligation is to formally review the contested proposal, after which it may withdraw, amend, or maintain it unchanged.

Arguably the most dramatic change put forth by the Constitutional Treaty, however, is the transition from unanimity to majority vote in adopting new EU legislation pertaining to thirty policy areas, including asylum and immigration, energy, and aspects of criminal due process, with national vetoes retained over direct taxation, foreign and defense policy, and financing of EU budget. This entails further erosion of national sovereignty, and will curtail the relative impact of the small and medium-size member states (i.e. all of the ten accession countries, among others). There is a widespread agreement that justice, home affairs, agriculture policy and subsidies, and the single legal personality issue – all perennial bones of contention in the EU – will be the most affected policy areas by the transition to majority vote. At present, all attempts at integrating criminal and immigration law can be blocked by any single country. Under the Constitution, crucial aspects of immigration policy in the European context – refugees and asylum – will be decided by majority vote, not unanimity. This in turn would help the established member states ensure that no accession country unilaterally opens its doors to massive immigration from neighboring non-EU countries. The Constitutional Treaty also provides for the harmonization of criminal law and sentencing for certain serious crimes with cross-border implications (e.g. corruption, tax evasion, money laundering, drug and women trafficking, etc.). This was done in an attempt to prevent the creation of hubs of criminal activity in the present and future accession countries, some of which lack a longstanding tradition of western style law and order. What is more, the Constitutional Treaty formally recreates the EU as a single legal personality, thereby enabling it to sign treaties in its own right that bind all members.

The Constitutional Treaty also establishes a new voting system at the Council of Ministers (the EU’s stirring committee or board of directors) – the putative “double majority” – under which an EU law would be passed if it won the support of at least 55 per cent of EU countries, whose combined population represents at least 65 per cent of the total EU population. A blocking minority must come from four or more countries. This replaces the system agreed upon the Nice 2000 summit, in which countries were awarded “weighted votes.” According to the Nice agreement, the “big four” – Germany, Britain, France and Italy – would have been given 29 votes each, and Spain and Poland, each with half the population of Germany, would receive 27 votes. The EU devised such a skewed voting system in reaction to the politics and panic of the moment. Double majority was proposed at Nice, but France, which held the EU presidency at the time, refused to accept the system because due its larger population it gave Germany comparatively more power. The Poles, who were not even at the table in Nice, were the happy beneficiaries of a combination of French intransigence and Spanish negotiating skills.

The move to a “double majority” voting system pumps up German power within the EU (from 9.2 per cent under Nice to 18.2 per cent) and deflates the power of medium-sized countries. Since the total EU population post-enlargement is estimated at 455 million, under the double majority system, any combination of three of the four most populous states (Germany with slightly over 80 million; Britain with roughly 65 million; France and Italy with slightly over 60 million residents each), would exceed the 35 per cent needed to block any substantial change. Such tripartite opposition would only require the support of one additional member state to block any meaningful legislation or decision-making by the Council of Ministers. A united front of the “big four” would not even require the support of another member state to block any Council of Ministers initiative. Therefore, the EU could effectively be governed by the four most populous states. Unsurprisingly, the Spaniards and the Poles were not keen to accept the “double majority” revision to the Nice agreement. Political power holders in Berlin, on the other hand, insisted all along that the double majority was non-negotiable. “This is a point on which we are not prepared to move” Gerhard Schröder said in December 2003.48 And move they did not.

However, these influential pro-constitutionalization political vectors in the EU cannot operate in a vacuum. To effectively promote their constitutionalization interests, they must secure the cooperation of powerful stakeholders who possess compatible interests. The adoption of a formal constitution also serves the interests of other important stakeholders who may possess compatible interests, most notably the centripetal interests of the federalist EU bureaucracy, and the quest for expanded ambit of influence by the EU judicial apparatus and its proactive apex court. Likewise, powerful economic producers may view the constitutionalization of certain liberties, especially property, mobility, and occupational rights, as a means of fighting “market rigidities” and promoting the free movement of labor, commodities, and capital.49 When the interests of these pertinent stakeholders converge, constitutionalization is likely to advance.

In practice, big business showed little interest in the proceedings leading up to Brussels. For economic conglomerates, it was the establishment of the European Central Bank in June 1998 (ensures monetary stability by setting interest rates in the Euro zone), and the transition to a single market regime in 2002 that were crucial steps toward the realization of their interests. Indeed over the past decade, the EU has gone well beyond scrapping tariffs, and declared war on all sorts of protectionist national rules as well as on subsidies to domestic industries. EU leaders have also committed to launch a new round of deregulation as part of the “Lisbon agenda” of economic reform. Indeed, one of the reasons for the failure of the 2003 Brussels summit was the non-business friendly inclusion in the Charter of Fundamental Rights (part two of the constitution) of wide-sounding social rights such as the right to strike, the right to work, the right of workers to be informed and consulted, and even the generous right to free job placement services. Unsurprisingly, Britain, Ireland, and a number of enlargement countries have expressed deep concerns about the non-favorable implications of these generous welfare provisions on big business.

As the “strategic revolution” in the study of judicial behavior has established, judges may be precedent followers, framers of legal policies, or ideology-driven decision makers, but they are also sophisticated strategic decision-makers who realize that their range of choices is constrained by the preferences and anticipated reaction of the surrounding political sphere. Likewise, ECJ judges (and indeed the judges of other supranational tribunals and national high courts) may be viewed as strategic actors to the extent that they seek to maintain or enhance their court’s institutional position vis--vis other pertinent decision-making bodies. Courts may realize when the changing fates or preferences of other influential political actors, as well as gaps in the institutional context within which they operate, might allow them to strengthen their own position by extending the ambit of their jurisprudence and fortifying their status as crucial policy-making bodies.50 The ECJ is bound to gain a more powerful role in coming decades in interpreting the Constitutional Treaty and especially its attached Charter of Fundamental Rights in such a way as to enforce and accelerate integration. The formal statement of the primacy of EU law over national law, a principle previously established by the jurisprudence of the ECJ;51 the establishment of a formal EU legal personality, enabling it to sign international agreements; and the extension of EU power to justice and home affairs also entail an inevitable increase in the ECJ’s case load and significance as the ultimate definer and interpreter of EU law.

However significant bureaucratic, economic and judicial elites’ own support of constitutionalization may be, it is the support of influential political power-holders that remains a key factor in this process. Unlike the federalist EU bureaucracy and judiciary who are set to enhance their influence and profile under a new constitutional order, it is national governments and other influential political power holders whose institutional room for political maneuvering is likely to be curtailed by constitutionalization and the corresponding expansion of supranational judicial power. Thus, the hegemonic preservation impulse of powerful political stakeholders and rulings governmental coalitions – not the pro-constitutionalization stand of judicial, bureaucratic, or economic elites – is the primary catalyst and driving force behind the quest for an EU constitution.

In sum, constitutions do not fall from the sky. They are politically constructed. The causal mechanisms behind the adoption of the EU Constitutional Treaty are not fully delineated by theories of constitutional transformation that emphasize normative principles or organic necessities as the main driving forces behind constitutionalization. In particular, both idealist and functionalist explanations of EU constitutionalization fail to account for the precise timing of and political vectors behind the adoption of a formal EU constitution – a development that is not derivative of any revolutionary or otherwise memorable “constitutional moment” and is clearly distinguishable from the gradual, decades-long, “quasi-constitutionalization” of the European Community’s legal order.



As one of those people who “seldom think of politics more than 18 hours a day,”52 I have advanced here a strategic notion of EU constitutionalization as driven primarily by the interests of risk-averse power-holders within the EU, who seek to reduce uncertainty and enhance the credibility of interstate commitments against the potentially destabilizing consequences of enlargement. In that respect, the contemporaneous emergence of the EU enlargement and formal constitutionalization is anything but coincidental. Put bluntly, the adoption of an EU constitution is best understood as a preventive measure that allows powerful stakeholders within the EU to enjoy the geo-political and macro-economic benefits of enlargement without risking the embedded uncertainty, potential divergence, and other accompanying perils posed by the EU’s spread to central and eastern Europe. The EU enlargement and the EU Constitution, as the epigraph to this paper suggests, are indeed two sides of the same coin.


1* © All Rights Reserved, 2004. An earlier version of this paper was presented at the “Altneuland: The Constitution of Europe in an American Perspective” Conference (NYU-Princeton, April 28-30, 2004). I thank the organizers and the conference participants, particularly Dr. Ulrich Haltern, for their helpful comments; Paul Kaufman for his effective research assistance and Erin Metzler for her skillful editorial assistance. Special thanks are due to Professor Ayelet Shachar for her thoughtful comments and suggestions.
See Bruce Ackerman, We the People: Foundations (Harvard University Press, 1992).

2 The literature on the ECJ-initiated, gradual quasi-constitutionalization of the EC legal order is too vast to cite. The thematic focus of this branch of scholarship is the role of the ECJ in the process of European integration. The seminal account is J.H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991). The distinct features of the current attempt to adopt a formal comprehensive EU constitution, the draft constitution, etc. are discussed in European Constitutionalism Beyond the State (J.H.H. Weiler & M. Wind, eds., Cambridge University Press, 2003).

3 A few examples of the “no apparent transition” constitutionalization scenario are the constitutional revolution and the corresponding establishment of active judicial review in Sweden (1979), Egypt (1980), Hong Kong (1991), Mexico (1994), Argentina (1994), and Thailand (1997); the enactment of the New Zealand Bill of Rights Act in 1990; the adoption of two new Basic Laws in Israel protecting a number of core rights and liberties; the adoption of the Canadian Charter of Rights and Freedoms in 1982; or the adoption of the Human Rights Act in Britain in 1998.

4 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004).

5 Simone Chambers, Democracy, Popular Sovereignty, and Constitutional Legitimacy, 11 Constellations 153 (2004).



6 See, e.g., Phillip Schmitter, How to Democratize the European Union . . . And Why Bother (Rowman & Littlefield, 2000).

7 See, e.g., Dieter Grimm, Does Europe Need a Constitution? 1 Euro. L.J. (1995), 282.

8 Dieter Grimm, “An EU Constitution?” presentation at the University of Toronto’ Constitutional Roundtable, March 15, 2004.

9


The works that adopt various versions of this approach are too numerous to cite. However, the most prominent exponent of this line of thought is Ronald Dworkin. See, e.g., Ronald Dworkin, Taking Rights Seriously 147-149 (Duckworth, 1978); A Bill of Rights for Britain 13-23 (Chatto and Windus, 1990).

10 See generally Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality 36-111 (Cambridge University Press, 1979); Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 134-177 (University of Chicago Press, 1995); Jeremy Waldron, Law and Disagreement (Oxford University Press, 1998).

11


See Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981); Martin Shapiro, The Success of Judicial Review, in Constitutional Dialogues in Comparative Perspective 193 (Sally J. Kenney, et al. eds., Macmillan Press, 1999).

12

See George Tsebelis, Decision-Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism, and Multipartyism, 25 British J. Pol. Sci. 289, 323 (1995); see also Do Institutions Matter? Government Capabilities in the United States and Abroad 31 (R. Kent Weaver & Bert A. Rockman eds., Brookings Institution, 1993).



13


See Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 Duke L.J. 364, 377-379 (1995).

14

See Carlo Guarnieri et al., The Power of Judges: A Comparative Study of Court and Democracy 160-181 (Oxford University Press, 2002).

15 The works that adopt various versions of this approach are too numerous to cite. However, some of the most prominent exponents of this line of thought are Donald Horowitz, Arend Lijphart, and Yash Ghai.

16


See Malcolm M. Feeley & Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons 22-25 (Cambridge University Press, 1998).

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