The Constitutions Gift?

A deliberative democratic analysis

of constitution-making in
the European Union



John Erik Fossum & Augustn Jos Menndez








Working Paper
No.13, March 2005

http://www.arena.uio.no

Abstract

Our aim in this article is to consider whether the Unions deliberation over and
decision-making on constitutional norms, can contribute to render it more democratic.
From a normative perspective, the way a constitution is forged has deep implications for
its democratic legitimacy. In light of recent events, we consider how procedural
changes in constitution-making might contribute to rectify the Unions democratic
deficit. To do so we first develop a thin model of constitution-making based on the
central tenets of deliberative democracy. We seek to outline how a legitimate
constitution-making process will look from a deliberative democratic perspective.
Second, we distil out some of the core characteristics of the Intergovernmental
Conference (hereafter, IGC) model and assess this against the normative model, to
establish the democratic quality of the IGC model. Third, we assess the current Laeken
process by means of spelling out the central tenets of this mode of constitution-making,
and we assess it in relation to the normative standards of the deliberative model. In the
fourth and final step, we consider what contribution constitution-making might make to
the handling of the EUs legitimacy deficit(s).









[T]he Union stands at a crossroads, a defining moment in its existence What might
the basic features of such a [European] constitution be? The values which the Union
cherishes, the fundamental rights and obligations of its citizens, the relationship
between Member States in the Union? (Laeken Declaration)

I. Introduction

1. The European Union (hereafter, EU) has gradually emerged as a political
community in its own right. The EU affects the distribution of power and resources in
the Member States, as well as in affiliated states. This comprehensive body of Treaties,
regulations and directives covers virtually all areas of public policy. Through this body
of law, the Union confers rights as European citizens on the nationals of the Member
States. Moreover, the process of European integration has generated a supranational
structure,
1
and has spurred a progressive convergence of the Member States
institutional structures.
2
It has become increasingly apparent that the Unions
institutions and its laws affect and even shape the daily lives of European citizens in a
myriad of ways.
The transformation of Europe has come hand in hand with the realisation that the
Unions legitimacy cannot be exclusively based on its capacity to solve common
problems; neither can it be merely derived from its Member States,
3
which pioneering
neo-functional or intergovernmental accounts of European integration tended to assume.
The increasingly political nature of the Union has rendered output and indirect

1
See Joseph Weiler, The Community system: the dual character of supranationalism, 1
(1981) Yearbook of European Law, pp. 267-306. The Constitution of Europe, Cambridge:
Cambridge University Press, 1999; Christian Joerges and Ellen Vos (eds.) EU Committees,
Social Regulation, Law and Politics, Oxford: Hart Publishers, 1999; Edoardo Chiti,
LAgenzie Europee, Padova: CEDAM 2002.
2
There is a rapidly growing body of literature on Europeanisation. See, for example,
Cristopher Knill, The Europeanisation of National Administrations, Cambridge: Cambridge
University Press, 2001; Johan P. Olsen, The Many Faces of Europeanisation, 40 (2002)
Journal of Common Market Studies, pp. 581-602; Kenneth Hanf and Ben Soetendorp (eds.)
Adapting to European Integration Small States and the European Union. London:
Addison Wesley Longman Ltd, 1998. In the legal literature, Lord Denning aptly described
European law as the incoming tide. See H P Bulmer Ltd v J Bollinger SA [1974] Ch 401 at
418.
3
See Erik Oddvar Eriksen and John Erik Fossum, Democracy in the European Union.
Integration through deliberation? London: Routledge, 2000; Erik Oddvar Eriksen, John
Erik Fossum and Agustn Jos Menndez, The Chartering of Europe. Baden-Baden:
Nomos, 2003; Developing a Constitution for Europe, London: Routledge, 2004.

legitimacy inadequate.
4
These modes of legitimation, characteristic of classical
international organisations, simply cannot cope with the Unions legitimacy needs. The
net upshot is that the Union will continue to suffer from a legitimacy gap unless it can
establish its own democratic credentials. Since the ratification of the Maastricht Treaty
in 1992, citizens have repeatedly rendered clear that their commitment to the project of
European integration is far from unconditional.
5


2. In this context, it is widely held that the establishment of a democratically-
decided constitution could go far in redressing the democratic deficit. Such a claim has
been raised both before, as well as after, the work of the Convention on the Future of
the European Union (hereafter, the Convention).
6

Our aim in this article is to consider whether theUnions deliberation over and
decision-making on constitutional norms, can contribute to render it more democratic.
From a normative perspective, the way a constitution is forged has deep implications for
its democratic legitimacy. In light of recent events, we consider how procedural
changes in constitution-making might contribute to rectify the Unions democratic
deficit.
7


3. We proceed in four steps. First, we develop a thin model of constitution-making
based on the central tenets of deliberative democracy. We seek to outline how a
legitimate constitution-making process will look from a deliberative democratic

4
Jrgen Habermas, So, why Europe needs a Constitution?, 11 (second series) New Left
Review, pp. 5-26.
5
Consider the initial Danish no and the Frech petite oui in the respective Maastricht Treaty
referenda, together with the recent no in Ireland to the Nice Treaty. For a theoretical
analysis of European referenda, see Patricia Roberts Thomson, EU Treaty referendums
(sic) and the European Union, 23 (2001) Journal of European Integration, pp. 105-38.
6
It goes without saying that one could claim that the European Union cannot and/or should
not be portrayed as a full-blown political community, but as an international organisation.
Cf. Derrick Wyatt, `New Legal Order, or Old?', 7 (1982) European Law Review, pp. 147.
The acceptance of such an analysis would necessarily lead to the conclusion that the
attempt at reconstructing and assessing Treaty amendment as a matter of constitution-
making is simply wrong. This is a coherent theoretical position, but we find that it fails to
come to grips with the Unions breadth and scope of powers and influence not only upon
the Member States, but also upon the citizens.
7
Thus, in this article we do not deal with the democratic potential of the substantive
contents of a European Constitution. The new constitutional frame may enhance the
democratic character of the Union if it becomesa catalyst for democracy, for example by
means of ensuring the democratic character of the ordinary process of law-making. On this,
see also the reflections contained in Section V.
perspective.
8
This provides us with the requisite standard to evaluate the democratic
quality of actual deliberations and decisions on the basic norms of Union law. Second,
we distil out some of the core characteristics of the Intergovernmental Conference
(hereafter, IGC) model and assess this against the normative model, to establish the
democratic quality of the IGC model. This assessment of the IGC in constitutional
terms is premised on our finding that the process of legal integration has been grounded
in the constitutional traditions common to the Member States, and in their converging,
something which enabled a constitutional reading of Union law. This has come hand in
hand with the continual albeit slow constitutionalisation of Treaty amendment
procedures. Third, we assess the current Laeken process by means of spelling out the
central tenets of this mode of constitution-making, and we assess it in relation to the
normative standards of the deliberative model. This assessment enables us to determine
how much the Laeken model deviates from the IGC model. Through these steps, we can
better locate the present reform process in its normative and historical context, and
assess it accordingly. In the fourth and final step, we consider what contribution
constitution-making might make to the handling of the EUs legitimacy deficit(s).
This is thus an evaluative article, which assesses empirical instances of treaty-
making in relation to an ideal model of constitution making. But it is also a
reconstructive article, to the extent that we look for possible approximations in relation
to the model over time (the standard IGC model, and the Laeken process).
9


II. The normative model established: Deliberative Constitution-
Making

A) Deliberative democratic constitution-making

4. Our deliberative model of European constitution-making speaks to the core
normative requirement of realising the public and private autonomies of Europeans.
First, we assume that in a modern society, legal norms play a critical role in
social integration, through conflict-solving and action-coordination in order to achieve

8
The model is ideal, but not fully abstract, as it takes problems which arise in actual
constitution-making into account.
9
Thus, the emphasis here is on a reconstruction and an assessment of the process in
democratic legitimacy terms; our intention is not to establish the causal mechanisms
involved.

common, public goals. However, legal norms cannot be legitimated with reference to
functional goals only. The key problem associated with the legitimacy of law, and of
course also the legitimacy of European law, is indeed normative, not functional. It can
be summarised as: do citizens have an obligation to obey the law? This can only be
answered in the affirmative if the law is deliberated and decided upon through
procedures which guarantee the public and private autonomies of individuals, that is,
democratic law-making procedures, in which citizens can identify themselves as
authors, and not only subjects, of the law.
10
Therefore, law must be forged through
procedures which respect the basic right of all those affected to participate in the
deliberation and decision-making of legal norms.
Second, we claim that the principle of legality needs to be considered in some
detail, by means of distinguishing between two main types of laws: the constitution and
ordinary statutes. The constitution is conceived of as the supreme and key norm of the
legal order, which frames ordinary law-making. The Constitution lays the ground of
political decision-making, by means of establishing the citizens rights and duties, and
through establishing the basic principles which should program and inspire political
decision-making. Thus, the Constitution typically contains: (1) the thin substance which
underpins deliberative democracy,
11
or what is the same, the very idea of democratic
deliberation; and (2) the most basic (and only the most basic) ethical choices of the
political community, which should frame the ordinary legislative process.
12
The
distinction between and the hierarchical ranking of the constitution and ordinary laws
are intended to allow citizens to concentrate their political virtue on the constitional
moments when the Constitution is being transformed. This not only helps to reconcile
private and public autonomy, but is indeed a distinction related to the characteristic
features of a modern society based on a division of labour, and to the accommodation of
different conceptions of the good life. Indeed, the bifurcation and the hierarchical
relationship between the constitution and ordinary laws are normatively grounded. The
legal property of hierarchical superiority is supported by the normative superiority in

10
This is the hard core of the democratic principle. See Jean Jacques Rousseau, Oeuvres
completes, III. Paris: Seuil, p.380.
11
Jrgen Habermas, Constitutitonal Democracy, A Paradoxical Union of Contradictory
Principles?, 29 (2001) Political Theory, pp. 766-781.
12
Bruce Ackerman,We The People, volume I (Foundations), volume II (Transformations),
Cambridge: Harvard University Press, 1991 and 1997. See also (with Neal Kumar Katyal)
Our Unconventional Founding, 62 (1995) University of Chicago Law Review, pp. 475-
573; and Revolution on a Human Scale, 108 (1999) Yale Law Journal, 2279-2349.
democratic terms - of the Constitution.
13
By constitutionalising the thin substance of
democracy, democratic decision-making is constituted in a literal sense, and democratic
decision-making is enabled. By constitutionalising the most basic ethical choices of the
society, such choices are protected from change by ordinary legislative processes,
which might reflect a purely contingent majoritarian will.
14
By limiting
constitutionalisation to the thin substance of democracy, and the most basic ethical
choices of society, the constitution frames, yet does not make, the political law-making
process insignificant. The latter should be competent to apply the contents of the
constitution to concrete circumstances.
Third, the two previous premises imply that the process of forging the
constitution must be subjected to thorough public debate and scrutiny. This serves both
epistemic and political purposes. In epistemic terms, the intention is to generate
improvements in information as well as in judgement: to produce reasons and
assessments of their merits. In political terms, this implies a special intensity and quality
of public participation and is what establishes the difference between the constitution
and ordinary statutes. The constitution-making process should aim not only at the
formation of a coherent constitutional will, but the intensity and strength of such a will
should be checked through demanding decision-making processes. The actual forging of
a draft has to be properly institutionalised because a final decision is needed. This calls
for a major role for representative institutions, strong publics,
15
, but an active public
sphere must be well-connected to the process (general publics), and the latter should
have the last word in the decision-making upon constitutional reforms.
16
Democratic
constitution making, therefore, entails multiple publics, because multiplicity ensures a

13
This normative grounding of the superiority of the Constitution also explains the
democratic dignity assigned to statutes. The questioning of the constitutionality of a
statute does not generally result in the suspension of its application, because Constitutional
Courts must assume, until proven to the contrary, that parliaments comply with the
Constitution in the exercise of their law-making powers. Similarly, Courts make use of the
room to construct statutes in such a way that they will be in compliance with the
Constitution.
14
Carlos Santiago, A Philosophical Reconstruction of Judicial Review. 14 (1993) Cardozo
Law Review, pp. 799-846.
15
Strong publics refer to institutionalised deliberations whose discourse encompasses both
opinion formation and decision making. In institutional terms, strong publics alludes to
parliamentary assemblies and discursive bodies in formally organised institutions imbued
with decision-making power, yet constrained by the logic of arguing and impartial
justification.
16
Weak or general publics refer to public spheres whose deliberative practice consists
exclusively in opinion formation and does not also encompass decision making. See Nancy
Fraser, Rethinking the public sphere. A contribution to the critique of actually existing
democracy, in Craig Calhoun (ed.) Habermas and the Public Sphere. Cambridge, The MIT
Press, pp. 109-42, at p. 134.

better testing of democratic legitimacy. Institutionalisation is intended to ensure the
formation of a coherent constitutional will at the end of the day.
17
There is to be a vital
interplay between the public sphere based in civil society and in institutionalised will-
formation.
18


5. Our ideal model is thus closely connected to a normative conception of the
constitution. It deals with a process of overt and intentional constitutionalisation. In that
sense, the model stands in some contrast to the processes of evolutionary
constitutionalism, where the material constitution emerges through a slow process in
which legislative and judicial decisions cumulate over time so as to establish a new
legal order, or to actually change the contents of the material constitution
19
. Arguably,
up until recently, the EU has embraced through default and not through design an
evolutionary constitutionalism.
20

Note that overt and intentional constitutionalisation does not lead to decisionism,
according to which constitution-making is mainly a matter of reflecting the popular (or,
in non-democratic variants, the leaders) will at a particular point in time.
21
We claim
that, if framed in the spirit of deliberative democracy, constitution-making must be
conceived of as a process, it cannot be confined to the mere moment of decision.
Indeed, constitutional norms enjoy what may be termed reinforced democratic
legitimacy because they have been developed through a proper process of clarification,
filtering and testing of differences, through which a strong constitutional will might
emerge. The different phases of the process can be constructed as a series of
increasingly demanding examinations, devised so as to test the depth and breadth of the
common will in favour of constitution-making or reform, both in terms of consistency

17
But notice that institutionalisation is not co-terminous with a formally labelled procedure
of constitution-making. Constitution-making and constitutional amendment can be
unconventional in that sense. See Ackerman, supra, fn 13 and Akheel Reed Amar, The
Consent of the Governed; Constitutional Amendment Outside Article V,94 (1994)
Columbia Law Review, 457-508.
18
See Habermas, Between Facts and Norms, Cambridge: The MIT Press, 1996, at pp. 306-8.
19
See Ackerman, supra, fn 13 (1999). For a defence of EU evolutionary constitutionalism, see
Joseph Weiler, In defence of the status quo: Europes constitutional Sonderweg, in Joseph
Weiler and Marlene Wind, European Constitutionalism beyond the State, Cambridge:
Cambridge University Press, 2003, pp. 7-23.
20
The path-breaking reference here is Joseph Weiler, The Transformation of Europe, 100
(1991) Yale Law Journal, pp. 2403-83.
21
On decisionism, the leading reference is, obviously enough, Carl Schmitt. See the reprinting
of his Verfassungslehre, Berlin: Duncker and Humblot, 1993.
(support must converge around a single constitutional proposal) and in terms of
intensity (support must be as large as possible, verging on supermajorities).
We claim that the democratic process of constitution-making can be
reconstructed around five main phases:
Signalling
Initial Deliberation
Drafting
Agenda-settled Deliberation
Ratification

6. Before considering each of these phases in detail below, we should like to stress
that democratic constitution-making adheres to two central logics: deliberation and
decision-making. Deliberation, both in strong and in general publics, stimulates inputs,
fashioning and vetting of proposals and forging of views, opinions and stances, thus
opening of the process, whereas decision-making ensures choice among alternatives and
thus closure of the process.
22
An adequate interplay between strong and general publics
is essential for the legitimacy credentials of the constitution-making process to come to
fruition.

B) The Phases of Deliberative Constitution-Making in detail

7. Signalling. To get about writing or amending a Constitution, a decision must
first be reached on the actual need for doing so. A constitutional impetus is necessarily
the result of somebody explicitly claiming that there is a widespread social demand for
establishing a written constitution (or for amending the existing one). This opens up the
democratic process of constitution-making, but the democratic support for the signalling
group or individual is to be tested in the successive steps of the process. The signalling
has, then, something of an anticipatory character, as those signalling claim to articulate
a diffuse feeling within the community, while the very act of signalling might contribute
to create the momentum for such an initiative.

22
From a deliberative perspective, however, decision-making closes the process for the time
being. Deliberative democracy endorses both the need for having fixed common action
norms and the reflective capacity to amend such rules if their normative correctness is
proven wrong. The authority of the decided norm can be withdrawn through a new
instance of the constitutional or legislative process.

Three questions need addressing: (a) why forge or amend the constitution; (b)
why do so now; and (c) how to go about doing it? Signalling reflects an element of
leadership, (a top-down logic), but only to an extent. The signalling has to come hand
in hand with the reasons that the promoters give to speak in the name of We the People,
and which serve to mobilise the requisite popular support for the proposals. To put it
differently, the individual or group signalling the constitutional moment only has a
claim to articulate a diffuse social feeling, a claim which has to be redeemed by means
of eliciting wide public support as early as possible in the process.

8. The initial deliberative phase. The initial deliberative phase is where the claim
raised by those launching the constitution-making process is put to the test of public
opinion, and where (eventually) an agenda for constitutional reform starts to take shape.
Consequently, we can distinguish between two main questions, which are
simultaneously put to public examination. First is the claim that there is a widespread
social demand for a new constitution. But is this so? The litmus test is wide social
mobilisation in favour of launching the process of constitution-making, preferably
through a decision with an institutional dimension. A standard case is that of a landslide
electoral victory for the party or the parties that stand for constitutional change. Second,
the claim to reform the constitution is always based on a reform agenda, which gets
increasingly detailed as discussion proceeds. The process must be based on open
deliberation, so as to bring forth all the relevant arguments and positions on all the three
questions posed in the signalling phase. Third, the second phase is brought to an end
with an institutional decision to prepare a draft constitutional project. This explains why
low public mobilisation in favour of constitution-making could be compensated for, at
least temporarily, by representative institutions (strong publics) committing themselves
to constitutional reform. The latter could claim that such a will exists, even if it remains
unarticulated.
23


9. The drafting phase. The first victory for those standing for constitutional change
is to convince the public of the need to actually consider constitutional change in-depth.
This is synthesized in the decision of strong publics to open an explicit process of

23
The democratic validity of such a claim is critically dependent on the representativeness of
the relevant strong public(s) involved.
constitutional reform by means of an institutionalised debate on the contents of such a
change.
This phase speaks to the articulation of the will to have constitutional reform,
i.e., to forge a coherent will to have a specific new constitution. Strong publics are
responsible for this step. They explore how to render the will of citizens coherent
through public debates. Their deliberations result in the designation of a specific
representative body (a Constitutional Assembly, hereafter Assembly) or an already
existing body that is to be convened to draft a constitutional proposal.
Two basic conditions must be met for an Assembly to be legitimised as a
Constitutional Assembly. First, such an Assembly must have a direct sanction from the
people. Direct, unmediated representation is necessary with reference to the usual
understanding of the principle of legality, but even more so, on what concerns the
drafting of a constitution. In its strongest version this implies that the Assemblys
composition be determined through a direct, polity-wide election.
24
. Second, the
election of the Assembly must take place with a clear proviso that the mandate be that
of writing a constitution. Only in such a case would there be assurance that the public
deliberations preceding the election (by the people or by the strong public representing
the public) be focused on candidates ideas and views on the concrete exercise and
drafting of the constitution.
The activities of that strong public are aimed at establishing agreement on a
specific constitutional project. The original platform of constitutional reform is
considered in depth, on the basis of the deliberations of the representative institution
itself, and on the input which comes from civil society, expressed in phase two, and
which keeps on circulating from general to strong publics in this phase.
Put broadly and schematically, the deliberations of the Assembly, follow the
shape of a tract, i.e., they start out very broadly in terms of subject, and with reference
to matters of principle and as the process unfolds, brings these agreements to bear on
more specific matters. In overarching terms, the process sees a shift from an initial logic
of justification, to a much stronger subsequent focus on the logic of application.
25
The

24
A weaker version would entail election by strong publics. Certainly, in a case of low popular
mobilisation, and absence of an adequate signal, (as cited in 11), direct polity-wide election
would be very much needed to redeem such a claim. As already indicated, the weaker the
signal the greater the need to obtain direct popular support at this critical stage of the
process (cf. 9)
25
For these terms see Klaus Gnther, The Sense of Appropriateness Application
Discourses in Morality and Law, New York: State University of New York Press, 1993 and

process clarifies basic principles, as well as, their practical-institutional manifestations
and implications.
A proper balance between forging a common will and openness to general
publics can only be established by means of ensuring the proper transparency of the
work of the Assembly or Aseembly-like body. As has been stated, the Assembly acts as
a strong public, but one which should be closely attentive to the proposals and reactions
of general publics. Only then can we be sure that the constitutional proposal has been
properly tested through deliberation informed by public preferences and concerns.
In Table I, we have spelled out some of the requirements to be placed on such a
deliberative body. These are suggestive rather than exhaustive, and must be seen in light
of the broader normative requirements placed on the entire process.

TABLE 1
FEATURES OF THE STRONG CONSTITUTIONAL BODY: THE
CONSTITUTIONAL ASSEMBLY

The Conventions agenda is set by the popular mandate.

The Convention is an independent body. This means among other things that:
1. It appoints its own leadership;
2. It organises its own work;
3. It decides its own timeframe;
4. Members should be popularly elected
5. Members are fully committed to the constitutional process (in terms of time
and resources allocated)
6. No Convention member is subject to tight bootstrapping or is pre-committed
to defend a particular societal interest




Jrgen Habermas, Justification and Application Remarks on Discourse Ethics,
Cambridge: The MIT Press, 1994. More specifically, the initial stage identifies the general
principles and explores how they are related to each other, so as to establish a clearer sense
of their relations. In the next stages, the most important principles are contextualised and
empirical implications are derived. In practice, this involves going back and forth between
matters of principle and matters of practice and context.
The Conventions deliberations are open and transparent. This means among
other things that:
1. Its documents are available to the public;
2. General publics have direct access to the forum;
3. There are no constraints on the public interaction of individual Convention
members

The proposal must comply with the general requirements of democratic
constitution-making (but precisely how these are applied to this process is left to
the Convention to decide)

The work of the Assembly ends when a draft constitution is put forth. This reflects the
consensus among the members of the Assembly that they have managed to synthesize
the citizens desire for constitutional change into a coherent will, in draft proposal form.
Because of the democratic legitimacy of constitutional norms (cf. 4), a consensus or a
reinforced majority support for a proposal among the members of the strong public is
insufficient to render such a proposal into a binding Constitution (while it suffices to
render bills into statutes in the ordinary legislative process). A new process of
deliberation and decision-making of general publics is needed to achieve the enhanced
democratic legitimacy associated with constitutional norms.
It goes without saying that the third phase ends up in failure if it is agreed or
acknowledged that there is not sufficient support for any single draft constitution.

10. The agenda-settled deliberative phase. In the fourth phase of the
constitution-making process, a wide debate on what is now the draft constitutional
proposal forms centre-stage. The debate has to be focused on the overall merits of the
draft constitution, so that the final decision as to whether to endorse it or to reject it can
be properly made.
26
Strong publics should be committed to spark debate in civil society,
but quite obviously they cannot in themselves replace the legitimacy input stemming
from actual deliberation in civil society. It goes without saying that there is a difference

26
A negative position towards the draft constitution could very well be based on a different
platform of constitutional change, so that those opposing the draft text could aim at
defeating the present draft in order to signal a new constitutional moment afterwards.

between fostering debate and co-opting civil society. The debate is carried further by
general publics, organised ones in social movements, as well as un-organised ones.
The debate must go on for long enough time so as to allow the public to assess
the constitution in a proper manner.
27


11. The ratification phase Democratic legitimacy does not stem from the mere fact
of decision, even of majoritarian decision (cf. 5 above). The legitimacy of a constitution
rests to a large extent on the richness and quality of the debate prior to voting,
28
from
the reasons that move people to vote. However, there is no alternative to the testing of
the common will that is normatively superior to voting.
29
Thus, a proper form of
consultation is required in order to determine what the common will is. The standard
form of such a consultation is a referendum. However, it can take other forms, such as a
parliamentary election, the campaign of which has been basically devoted to the
constitutional draft (or, in exceptional cases, a special vote in Parliament, preceded by
widespread social debate can also be legitimate). At any rate, a proper and thorough
previous deliberation must precede it.
In particular, if the referendum form is the one opted for, the referendum
question must be clear and committing in the sense that it ensures that all those
partaking, consider themselves to make an unambiguous decision in favour of or against
a specific proposal. In order to ensure that the referendum reflects the single political
will to accept or reject the constitutional proposal, it must be a polity-wide referendum,
and one that is held at the same time throughout the entire polity, on the basis of the
same question. These features help avoid the possibilities for strategic decisions and
manipulative interpretations of the results in other parts of the polity (both in favour of
and against the proposal). The purpose is to ensure, as far as possible, a common focus
and a common attention throughout the process. So, for example, if there are time
differences, they must be such timed as to be simultaneous in actual terms to avoid
results from one part affecting those elsewhere.

27
The duration of this period is important for the question of accountability if it is too
short, accountability suffers; if it is too long, transparency might suffer, as it might become
difficult to sort out the relationship between the constitutional proposal and the final
decision.
28
Habermas, supra, fn 12.
29
Such a test can also be justified with reference to the need for common action norms to
avoid conflicts and to coordinate action.
The choice of procedure could be made to depend on the intensity of
constitutional change: the more comprehensive the type of change, the more need there
is for the referendum option.
30


C) The rationales for a democratic constitution

12. In our view, a democratic constitution contributes to the democratic legitimacy
of a polity in three ways. First, a democratic process of drafting the constitution is a
major achievement that can in itself consolidate democratic decision-making. This is
due to the central role played by the constitution as a reference point in symbolic,
political and legal terms. The analysis of unconventional constitutional moments by
Bruce Ackerman is indicative of such possibilities.
31
Second, the constitution, by
defining the process of constitutional amendment, could increase the chances for any
future amendment to satisfy the highest democratic standards of legitimacy. In that
respect, it is important to notice that this is essential in order to avoid the undemocratic
reform of the constitution, which could easily lead to the subversion of democratic life
in general. In that sense, it could be argued that, whilst it constrains democracy, the
constitution, paradoxically, also enables democratic constitutional change/amendment.
32

Third, the constitution could be such framed as to enhance the democratic standards of
the process of ordinary legislation. Even if ordinary statutes cannot be expected to meet
with the same degree of legitimacy as the constitution, when the processes of law-
making in the constitution meet with democratic requirements, the support for ordinary
legislation is also likely improved.




30
The complex nature of political communities, such as the EU, raises particular questions
pertaining to both options listed above. On the referendum requirement, it might be
necessary to have some form of double majority arrangement; i.e., both a majority of EU
citizens, and a certain minimum threshold of states. The second majority requirement a
majority of states - would be fulfilled by parliamentary ratification in the states. With
regard to the second, the parliamentary ratification option, the same double majority
requirement applies. This could be formulated in the following manner: It must include
ratification by the EP, and supplemented with ratification in national parliaments. These
also have to take place on the same day to avoid the problems listed above. The threshold
for the EP could be simple majority, combined with for instance 4/5 of the national
parliaments.
31
Ackerman, supra, fn 13.
32
Habermas, supra, fn 12.

III. Constitution-making EU style: Intergovernmental Conferences

13. In this section, we postulate that it is possible to reconstruct one model of treaty
change in the EU, which we call the IGC model. We further claim that the IGC model
was initially a process of interstate diplomacy
33
, but has over time developed into a
quasi-constitutional process.
34
We see a connection between the emerging constitutional
reading of Community law, especially noticeable in judicial rulings (15), and the
constitutional framing of Treaty reform.
These premises explain why we try to highlight the features of the model that the
various instances of treaty change share, while emphasising the slow but steady
transformation of the process, from a framework for intergovernmental bargaining into
a process with quasi-constitutional features.

1. The material constitutional law of the Union, between constitutional traditions
and Treaties

14. It is widely agreed that the EU lacks a formal constitution. However, it is
possible to construct Union law as a system of norms on top of which we find a set of
primary or constitutional norms, which are considered to be binding on secondary
norms. This line of interpretation, hinted at by the European Court of J ustice in the
leading cases Van Gend en Loos, Costa and Internationale,
35
and explicitly affirmed
later on,
36
has become accepted by national courts and governments.
37
The whole set of

33
Curtin, Deirdre, The Constitutional Structure of the Union: A Europe of Bits and Pieces,
30 (1993) Common Market Law Review, pp. 17-69.
34
Budden labels the 1985 SEA as the first of the quasi-constitutional IGCs. See Philip
Budden Observations on the Single European Act and relaunch of Europe: a less
intergovernmental reading of the 1985 Intergovernmental Conference, 9 (2002) Journal
of European Public Policy, pp. 76-97, at p. 77. In our view, Maastricht was the most
obvious turning point, with subsequent events, in particular Amsterdam and also Nice,
having become more explicitly focused on the political-institutional and even constitutional
dimensions of the EU. They took place in a setting, where it was widely held that the EU
had a material constitution. For this term see Agustn Jos Menndez, Three Conceptions
of the European Constitution, in Eriksen, Fossum and Menndez, supra, fn 4 (2004), at
pp.109-128. For similar arguments, see Weiler, supra, fn 2.
35
Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v
Netherlands Inland Revenue Administration, Judgment of 5 February 1963, [1963] ECR 3
and Case 6/64, Flaminio Costa v E.N.E.L., Judgment of 15 July 1964, [1964] ECR 1141.
36
Case 294/83, Parti cologiste Les Verts v. European Parliament, [1986] ECR 1357,
paragraph 23.
37
Cf. for example, 22 BverfGE 293 at 296. The European Communities were said to have a
constitution of their own laid down in the Treaties. See also Karen Alter, Establishing the
Supremacy of European, Oxford: Oxford University Press, 2001; and Lisa Conant, Justice
primary norms thus plays, in a material sense, a role similar to that of national
constitutions.
38
However, this material constitution has emerged in the absence of
constitutional politics, and therefore, without forging a constitution in a proper
democratic sense.
39


15. On what concerns the structure of the material constitution of the EU, the
Treaties tend to be regarded as its core component. This might be true in quantitative,
but not in qualitative terms. Instead, the constitutional traditions common to the
Member States are the most fundamental norms of the material constitution of the
Union, for two main reasons. Firstly, this allows us to produce a convincing
explanation (and legal justification) of the three major judgments of the Court, the
troika of the said Van Gend en Loos, Costa and Internationale. It is usual to interpret
them as instances of judicial quasi-constitution-making, as the Court would have
decided the cases not on a legal (Treaty?) basis, but on its certaine ide de lEurope.
40
If
we hold that the common constitutional traditions are the founding basis of the Unions
material constitution, and that the Treaties are merely a first attempt at specifiying such
traditions in the specific context of the process of European integration, the referred
leading judgments can be reinterpreted as attempts at further specifying the structural
principles required by the law of integration. Thus, the affirmation in Internationale that
the protection of fundamental rights is an unwritten principle of Community law is no
longer to be interpreted as an argumentative trick in order to entrench the supremacy of
Community law, but as a reflection of the grounding role played by common national
constitutional traditions.
41
In brief, this interpretative standpoint allows us a better
interpretation of the basic case law of the Court, at the same time that it explains how, in

Contained, Law and Politics in the European Union, Ithaca: Cornell University Press,
2002.
38
See Menndez, supra, fn 36, at pp. 116ff.
39
Martin Shapiro, Comparative Law and Comparative Politics, 53 (1980) Southern
California Law Review, pp.537-42.
40
The leading article is Eric Stein, Lawyers, Judges, and the Making of a Transnational
Constitution, 75 (1981) American Journal of International Law, pp. 1-27.
41
Similarly, the affirmation of the principle of the direct effect of Treaty provisions or of the
supremacy of Community norms within the fields of Community competence can be
reinterpreted as an attempt by the Court to determine what the common constitutional
traditions required in those regards, and not as an act of quasi-constitutional will not based
on the law.

many other instances, the Court put, so to say, the flesh of the legal system onto the
bones of the three founding Treaties.
42

Secondly, the characterisation of the common constitutional traditions as laying
the ground for the European Constitution corresponds to the understanding of the
process of integration in most if not all national constitutional traditions, and in the
interpretation of them provided by national Constitutional or higher courts.
43
National
constitutional courts tend to see the process of European integration as one where the
horizons of national constitutional traditions move closer, although this need not entail
losing their particular constitutional identity. National constitutional courts have over
and over again reiterated that Union law cannot but be based on national constitutional
traditions (even if they have sometimes failed to realise that it is the common national
constitutional traditions as a whole, and not any single tradition, that found Community
law).
From this reading, the Treaties, we insist, are to be regarded as a partial albeit
incomplete attempt at rendering some of the principles of the common constitutional
traditions explicit. Consequently, Treaty amendment is to be considered as the
functional equivalent of constitution-making in the Union because through it the
common constitutional traditions are specified in the context of the process of
integration, and, as the constitutionalisation of the Treaty amendment process becomes
more explicit, the common constitutional traditions themselves could be revised.

16. Thus, the material constitutional law of the Union is to be found, first and
foremost, in the common constitutional traditions of the Member States. The process of
explication and specification of such traditions has proceeded through the ratification of
the founding Treaties, and indeed, through their successive reforms, but also through
leading judgments where the Court of J ustice was forced to fill in some of the gaps left
by the Treaties.
The process of progressive constitutionalisation of Union law has been fuelled
by two concerns. First, the Treaties were written in the template of international law,

42
On the comparative approach followed by the Court, see, among others, Koen Lenaerts, Le
droit compare dans le travail du juge communitaire, 37 (2001) Revue Trimestrelle du
Droit Europen, pp. 487-527
43
On the different perspectives of reconstruction of Union law, see Catherine Richmond,
Preserving the Identity Crisis: Autonomy, System and Sovereignty in European law, 16
(1997) Law and Philosophy, pp. 377-420; Neil D. MacCormick, Questioning Sovereignty.
Law, State and Nation in the European Union, Oxford: Oxford University Press, 1999,
especially chapters 6 and 7.
and they contain norms of a constitutional nature, and others, which are ordinary legal
provisions. This explains why there have been numerous proposals to rewrite the
Treaties, distinguishing between a constitutional and a non-constitutional part. Aspects
of this line of thinking are also found in the convoluted delineation of four parts in the
Laeken Conventions proposed Draft Constitution.
44
This means that only parts of the
Treaties are regarded as being materially part of the constitutional or primary law of the
Union. Secondly, and more importantly, the process of explication of what is common
to the common constitutional traditions has become increasingly related to democratic
constitution-making on account of the growing legitimacy concerns with the EU.

17. An exhaustive analysis of Treaty amendment procedures would require
considering all instances of Treaty amendment
45
(and of drafting or amending of norms
with material constitutional status).
46
In the following we focus on what has until now

44
CONV 850/03, of 18 July 2003.
45
Major instances of Treaty-making and Treaty amendment are the Paris Treaty of 1951
establishing the European Coal and Steel Community, the Rome Treaties of 1957
establishing the European Economic Community and EURATOM, the Single European Act
of 1986, The Maastricht Treaty of 1991, and the Treaties of Amsterdam of 1996 and of Nice
of 2000. Minor Treaty amendments include the Saar Treaty of 1956, the Convention on
Certain Institutions Common to the European Communities of 1957, the Merger Treaty of
1965 and the Budget Treaties of 1970 and 1975. For this latter category see Christian
Franck, New Ambitions: From the Hague to Paris Summits, 1969-72 in Roy Pryce, The
Dynamics of the European Union, London: Routledge.
46
To be precise, we must say that there are a few but relevant norms which must be
characterised as constitutional, on an equal footing with the common constitutional
traditions and the (constitutional parts) of the Treaties. A clear example is the Decisions on
Own Resources,46 which actually fills in the gap voluntarily left in the Treaties in Article
TEC 269. See See 70/243/ECSC, EEC, Euratom: Council Decision of 21 April 1970 on the
replacement of financial contributions from Member States by the Communities' own
resources, OJ L 94, p.19 of 28.4.70 and the Council Regulation (EEC, Euratom, ECSC) No
2891/77 of 19 December 1977 implementing the Decision of 21 April 1970 on the
replacement of financial contributions from Member States by the Communities' own
resources, OJ L 336, p. 1, of 27.12.77; See 85/257/EEC, Euratom: Council Decision of 7 May
1985 on the Communities' system of own resources, OJ L 128, p. 15 of 7.5.1985; See
88/376/EEC, Euratom: Council Decision of 24 June 1988 on the system of the
Communities' own resources, OJ L 185, of 15.7.88, pp. 24-8 and Council Regulation (EEC,
Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on
the system of the Communities' own resources; OJ L 155, of 7.6.89, pp. 1-18; 94/728/EC,
Euratom, Council Decision of 31 October 1994 on the system of the European
Communities' own resources, OJ L 293, of 12.11. 94, pp. 9-13; Council Regulation
(Euratom, EC) No 1355/96 of 8 July 1996 amending Regulation (EEC, Euratom) No
1552/89 implementing Decision 88/376/EEC, Euratom on the system of the Communities'
own resources, OJ L 175, of 13.7.96, at pp. 3-6; Council Regulation (EC, Euratom) No
1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of
the Communities' own resources, OJ L 130, of 31.5.00; 2000, at pp.1-12, /597/EC,
Euratom: Council Decision of 29 September 2000 on the system of the European
Communities' own resources, OJ L 253, of 7.10.2000, at pp. 42-46. The same can be said
of the Act on Parliament Elections of 1976, which implemented the provisions contained in
Article 138.3 TEC, concerning the election of members of the European Parliament by

served as the canonical procedure of material constitution-making in the Union,
namely, the Intergovernmental Conference. This is the main path that the Union can
follow to alter its material constitution, to render more precise (or eventually alter) the
common constitutional traditions and their bearing on the institutional and factual
realities of Europe.
47


2. Intergovernmental Conferences

A) The underlying rationale: executive treaty-change

18. To assess the IGC method,
48
we cannot focus on only one single case of treaty-
making or change,
49
as the treaties are forged through a series of such processes, each of

direct suffrage. Cf. Act concerning the election of the representatives of the Parliament by
direct universal suffrage, annexed to the Council Decision of 20 September 1976, OJ L 278,
of 8.10.1976, pp. 5-11. These atypical constitutional acts are the result of two factors: first,
the lack of a complete formalisation of the system of sources of law in Union law, and
second, the international origins of the legal order of the Union. The process through which
they are debated and decided is an abridged instance of the Treaty amendment procedure,
and it reflects the unanimous will of all Member States.
47
Placing the focus on intergovernmental conferences entails that the Courts vital
interpretive actions are somehow sidelined in our model. It is true that the general
principles of Community law have been elucidated by the Court on the basis of the national
constitutional traditions, but it is no less true that, once established by the Court, their
status can be further acknowledged and specified by means of their formal inscription in
the Treaties, which then becomes authoritative and binding, even upon the Court. Thus, the
jurisprudential distillation of the contours of the general principle of protection of
fundamental rights can be portrayed as having prepared the ground on which the Charter
of Fundamental Rights of the Union was subsequently built. But once the latter is fully
inscribed into primary law (by the Intergovernmental or the Convention model), the Court
will have to reconsider its approach to the common constitutional traditions in line with the
text of the Charter.
48
Formally speaking, the IGC method has grown out of the system of intergovernmental
conferences, which the EU has used since its inception. The IGC is a specially convened set
of European Council meetings explicitly set up to deal with treaty reform. Partly on the
basis of the cumulated experience with the drafting of the Paris and Rome Treaties, the IGC
procedure was explicitly referred to in Article 236 of the Treaty of the European Economic
Community. In the first thirty years of European integration, the process foreseen in Article
236 was followed only once, as a way of preparing the 1965 Merger Treaty. In those years,
there were hardly any significant changes in the primary law of the Communities, except
for the budgetary reforms of 1970 and 1975, which were negotiated in a very speedy
manner. It was only in the eighties that Article TEC 236 was made use of, and only once
then. After the fruitless (in the short term) constitutional initiative undertaken by the
European Parliament in the early 1980s, an IGC was called for in 1984, to consider Treaty
reforms. In substantive terms, that conference resulted in the signing and ratification of the
Single European Act (SEA). In procedural terms, it signalled the rediscovery of the IGC,
which opened the way to an especially intense period of Treaty reform since then.
49
For accounts of the SEA, Maastricht, Amsterdam and Nice Treaties, see Finn Laursen and
Sophie Vanhoonacker, The Intergovernmental Conference on Political Union. Institutional
Reforms, New Policies and International Identity of the European Community,
Maastricht: European Institute of Public Administration, 1992; Finn Laursen (ed.) The
which can run over several years, and the accumulated momentum of which has by now
taken the EU into the realm of constitutional politics proper.
50
To develop the model we
have to distil out what the various instances share. As indicated, in reconstructing the
IGC model we have kept in mind our normative model, in the sense of looking for
functional equivalents of the five-phased constitution-making process.

B) The Phases of treaty-making/change

19. Signalling.The functional equivalent of signalling in Union law is the call for
amending the Treaties. This requires the establishment of an IGC, with the Member
States as the formal initiators; however, Union law stipulates that the European
Parliament (hereafter, EP) and the Commission are to be heard.
51
The threshold for
initiating such a process is low (an IGC can be established if a simple majority of the
European Council decides to do so).
The IGC model does not ensure a clear and explicit signalling, however. The
impetus for treaty change does not derive from an election or an ideological program,
52

but rather from the dynamics of the process of integration. It can be argued that the
process of integration has been the vital impetus for treaty reform.
53
This has also meant
that the Unions legitimacy problems have increasingly come to drive the agenda of
IGCs. But this has not meant that these challenges have given rise to constitutional
signalling.
The main reasons for this are institutional and political. The European Council,
whose institutional role is to define the general political guidelines of the European

Amsterdam Treaty: National Preference Formation, Interstate Bargaining and Outcome,
Odense: Odense University Press, 2002; Desmond Dinan, Treaty Change in the European
Union: The Amsterdam Experience, in Laura Cram, Desmond Dinan and Neill Nugent
(eds) Developments in the European Union, Basingstoke: Macmillan, 1999, 290-310.
50
Cf. Budden supra, fn 36; John Erik Fossum, Constitution making in the European Union,
in Eriksen and Fossum, supra, fn 4. Morten F. Greve and Knud Erik Jrgensen, Treaty
reform as constitutional politics a longitudinal view, 9 (2002) Journal of European
Public Policy,, pp. 54-75.
51
Cf. Article 48 TEU.
52
In contrast to for instance Reagans attempt to revoke the New Deal, where his election
provided such an impetus. See Ackerman, supra (1998), fn 13, at p. 390.
53
If we look at the concrete dynamics of recent treaty changes, we observe that it has become
a pattern to call for a new round of treaty changes to deal with left-overs, even before the
ink of the last Treaty reform has dried. The most explicit such a case was the Maastricht
Treaty (TEU), which had a provision (Article N, 2) that stated that an IGC was to be held in
1996; Laursen, supra, fn 51.

Union,
54
consists of national executives. Despite their European mandate, the
executives main line of accountability is to their national constituencies. Each national
contingent in the European Council serves as that nations representative, and can
define, articulate and pursue its version of the national interest (with different degrees of
leverage to the national constituency).
55
The consistent and adamant refusal on the part
of some Member States to acknowledge that there is an explicit constitutional
dimension to treaty reform, combined with national veto at the end of the process, help
explain why the issue of the Unions democratic deficit was not cast in explicit
constitutional terms until the Laeken process (where the constitutional character of the
process has been affirmed quite clearly and from the very beginning).

20. The initial deliberative phase. The absence of a clear-cut constitutional signal
makes it more difficult to establish what this phase consists in. The closest functional
equivalent to the initial deliberative phase could be said to be the preparatory phase of
the IGC, which starts with the appointment of a preparatory body.
56

This process is not set up to test the popular support for a constitutional
initiative. Rather, it is directly oriented at deciding on the specific issues to be dealt with
during the IGC, and occurs at three levels: official, ministerial and summit meetings.
Much of the work to prepare the treaty is undertaken by officials.
57
These bodies are not
strong publics. They are closed bodies that deliberate in secret. Their membership is
institutional participants, and they do not include representatives from civil society.
Those strong publicsthat the normative model considers essential to the
mobilisation of popular opinion in support of a constitutional proposal (, such as the EP

54
Cf. http://ue.eu.int/showPage.asp?id=429&lang=en&mode=g.
55
For accounts of IGCs that highlight the role of national executives, consider Andrew
Moravcsik, Negotiating the Single European Act: national interests and conventional
statecraft in the European Community.45 (1991) International Organization, pp. 19-56;
and The Choice for Europe, London: UCL Press, 1998
56
See Table 2 for a list of the preparatory committees since the SEA. The committees
generally consist of appointed experts, high-ranking staff and politicians (as appointed
personal representatives of heads of state and EU institutions, This was the case with the
Dooge Committee (Single European Act) and Westendorp Group (Amsterdam).
57
The General Affairs Council, which is made up of the Member States foreign ministers is
politically responsible for the IGC. This body is assisted in its work by the Committee of
Permanent Representatives (COREPER), which undertakes the preparatory work. This
body consists of the Member States permanent representatives in Brussels. The General
Secretariat of the Council assists these bodies in their work. The relative weight of experts
and national representatives has varied with IGC, so that in some cases the European
Council has merely rubber-stamped the work of the preparatory bodies, and in other cases,
extensive negotiations have taken place. See Derek Beach, Towards a new method of
constitutional bargaining?, The Federal Trust Constitutional Papers 13/03, available at
http://www.fedtrust.co.uk/uploads/constitution/13_03.pdf.
and national parliaments), are not assigned such a role in the IGC model (see Table 2
for more details on the role of the EP over time). Nevertheless, the EP has, since
Maastricht, played an important agenda-setting role. It has managed to establish a link
between a general public discourse about European democracy and a specific
programme of institutional reform.
58
National parliaments have strengthened executive
monitoring and control, although this has not extended to a popular mobilising role (see
Table 3, annexed, on national parliamentary monitoring mechanisms).

TABLE 2
Preparatory bodies and the role of the EP
IGC Preparatory work EPs role
Single European Act Dooge Committee No representation as an
institution in the preparatory
committee. The treaty revision
initiative was nonetheless
inspired by the EPs Spinelli
Draft Treaty. Two EP
representatives (President
Pflimlin and MEP Spinelli) met
at some ministerial meetings of
the IGC
Maastricht
(Economic +
monetary union)
Delors Committee/Report
(and the Guigou Report)

No representation in preparatory
work, although it adopted several
resolutions (based on the Martin
and Colombo reports). The
President (Baron) was present at
some meetings of the IGC, and
the IGC participants had various
meetings with a EP delegation
Maastricht (Political
union)
No institutionalised
preparatory work
No part in preparatory work.


58
Thomas Christiansen Supranational actors in EU treaty reform, 9 (2002) Journal of
European Public Policy, pp. 33-53, at p. 45.

msterdam Reflection Group/
Westendorp Group
(Member States
representatives and
representatives from
Commission and EP)
2 full members (Brok and
Guigou) in Reflection Group.
Not formally a part of the IGC,
but briefed regularly, represented
at ministerial meetings (by the
President, Hnsch, then Gil-
Robles) and having meetings
with the Group of
Representatives
Nice No institutionalised
preparatory work, but
reports among others by
the EP and the
Commission (the Dehaene
Report)
Presented a report in advance of
the IGC. Represented by 2 MEPs
(Brok and Dimitris) at all
meetings of the national
representatives, and the President
of the EP (Fontaine) exchanged
views with the IGC at all
ministerial sessions
Prepared by Geir Kvrk

TABLE 3
European Affairs Committees in the national parliaments

Country Chamber
in
parliament
Establishe
d
Number
of
Member
s
Weeks
betwee
n
meetin
gs
Scrutiny power:

Denmark Folketinge
t
11.10.72 17 1 Requires mandate from
committee for all decisions
UK Commons 7.5.74 16 1 Obliged to consult parliament
Lords 10.4.74 20 2 Obliged to consult parliament
Germany Bundestag 14.12.94
(91)
50 (11
EP)
1 Government is bound by a
position if it is adopted by the
Bundestag.
Bundesrat 20.12.57 23 3 Obliged to respect the views of
the Bundesrat
Austria Nationalra
t
15.12.94 27 2 Minister bound by mandate if
given
Bundesrat 14.12.94 21 On
request
Minister bound by mandate if
given
Sweden Riksdagen 16.12.94 17 1 Not formally binding , but
parliamentary binding
Finland Riksdagen 1.1.95 25 1 Not formally binding , but
parliamentary binding
France Assembl
e
Nationale
6.7.79 36 1--2 Government may request
suspension in Council with
reference to parliament
Senat 6.7.79 36 2--3 Government may request
suspension in Council with
reference to parliament
Spain Congreso/
Senado
27.12.85

39 4 Congress can postpone the
adoption of a position in Council

Nether-
lands
Tweende
Kam.
18.5.94 26 2 No general scrutiny power
Erste
Kam.
J une 70 13 4 No general scrutiny power
Italy Camera
dei
deputati
10.10.90 50 1/2 May ask government to postpone
adoption of councils position.
No formal parliamentary scrutiny
power
Senato 17.7.68 24 No formal parliamentary scrutiny
power
Belgium La
Chambre/
Da Kamer
25.4.85 20 (10
EMP)
4 No scrutiny power
Senat/Sen
aat
29.3.90 22 3 No scrutiny power
Greece Vouliton
ellinon
13.6.90 31 (10
EMP)
Government does not have to
consult or inform parliament.
Ireland Dil
/Senad
14.3.95
(joint)
17 2 Government does not have to
consult or inform parliament.
Luxem-
bourg
6.12.89 11 No scrutiny power
Portugal Assemblei
a da
Repblica
29.10.87 27 1 No scrutiny power
Source: Lars Blichner, The anonymous hand of public reason: Interparlamentary
discourse and the quest for legitimacy in Erik Oddvar Eriksen and J ohn Erik Fossum
(ed). Democracy in the European Union. Integration through Deliberation. London,
Routledge, 2000, pp. 145-6

21. The IGC structure is not very conducive to a coherent European or Europe-wide
debate. There are no Europe-wide elections. National elections are also not called for in
a coordinated way, so as to permit the people to assess and sanction the signals provided
by the Council. Electoral sanction is coincidental and dependent on national election
cycles. Thus, none of the two basic public tests that the normative model presupposes
for this phase is passed.


22. The Decision-Making Phase. The drafting phase is based on the work of the
expert groups and formalised in the European Council, which produces the official text
that is submitted for ratification. At such meetings the heads of government and their
supportive staffs meet at various intervals to negotiate the new treaty/treaty changes.
This might take one to two years, and up to six meetings.
A European Council meeting consists of the Heads of State or Government from
all the Member States and the president of the Commission.
59
Attendance at European
Council meetings is strictly regulated, with a limited number of participants. These
meetings are closed and highly secretive. It is worth quoting a summary description of
European Councils at length:
There is no verbatim report or record of proceedings. The lack of an
official record is at times an irritation and a frustration, and it can give rise
to ambiguity about what was decided, but it is also an important guarantee
for frank discussions.
60


In addition, there is no special procedure to single out or to amplify some
concerns or items as constitutional. This is so because the procedures used to organise
the European Council meetings during the IGC follow those set up for an ordinary
European Council meeting. Moreover, the drafting process is also closed. The Council
presidency draws up drafts of the treaty amendments, when the process permits doing
so. The actual drafting work is undertaken by the Council Secretariat. Beach notes that

59
For a detailed account of the European Council, see Martin Westlake, The Council of the
European Union, London: Catermill, 1995 supra, fn X, at pp.26ff. For other earlier
comprehensive accounts of the European Council, see Jan Werts, The European Council,
Amsterdam, 1992: Elsevier Science Publishers; and Simon Bulmer and Wolfgang Wessels,
The European Council: Decision-making in European Politics, Palgrave Macmillan, 1987
60
Westlake, Ibidem.

the Council Secretariats Legal Services provided sole legal advice to the IGC in the
past four IGCs, giving it a monopoly of authoritative legal advice to the IGC.
61
The
final text of the treaty is negotiated at the final European Council meeting, often in
marathon sessions. The format of the meeting is such as to permit the heads of state and
government to speak freely. But the limited time available, the high political stakes, the
expectation of results, the lack of detailed expertise at hand during meetings, and the
often very comprehensive agendas, inject the process with a strong bargaining impetus.
Throughout the IGC process, any Member State or the Commission is permitted
to table amendments (at virtually any time). The agenda, as noted, can be quite wide or
comprehensive, so that the IGCs may consider many amendments, and there is
considerable scope for fashioning package deals. As already noted, the IGC model is
marked by a weak institutional separation between constitutional matters and more
routine matters. Thus, this method is not very conducive to the singling out and
amplification of constitutional issues and concerns.
The structure of the IGC process is such that, whereas the meetings themselves
are closed and secretive, there is some scope for public deliberation, in-between the
meetings, as these are generally months apart. National governments are required by
their own constitutions to report to their parliaments, where debates can take place and
this can elicit further discussion in the national public spheres.
62
Further, during both the
Amsterdam and the Nice IGCs, public information campaigns were launched, and an
internet homepage was established which held a wealth of documents on the IGC.
63

Nevertheless, the public has limited means of conveying their opinions and views to the
participants in the process. Further, the very structure of the IGC process is particularly
conducive to deliberation in relatively separate or distinct national settings, as well as
within the EU institutions, rather than to a European-wide debate. It tends to fragment
debates, as issues are often framed in terms of national interests.
The EP is not formally a part of the decision-making phase. Some instituted
means of consultation have emerged, however. For instance, each IGC meeting at
ministerial level is preceded by a discussion with the President of the European

61
See Beach, supra, fn. 59, p.9.
62
COSAC serves as a vehicle to foster strong publics interaction. See Andreas Maurer, The
European Parliament, in Laursen, supra fn 51., pp. 405-50.
63
The Presidency report to the Feira European Council (CONFER 4750/00) notes that For
the sake of transparency, all official documents of the Presidency, the Member States and
the other institutions and bodies as well as the other official contributions to the
proceedings of the Conference have been made available to the public via the Internet.
http://db.consilium.eu.int/cig/
Parliament. This does not amount to the sparking of a wider debate, but need not
prevent the EP from wielding influence.
We have seen that formally speaking, executives dominate the decision making-
phase, without an explicit constitutional mandate or popular sanction. However strong
public intervention, combined with negative referenda results have injected democratic
legitimacy considerations into the process. Their constitutional implications have
become more readily apparent over time.

23. The agenda settled deliberative phase. This phase precedes the actual ratification
and is dependent on several variables exogenous to European institutions. As we will
see below, the design of ratification procedures is left to national constitutions. In this
system it is hard to foster a Europe-wide debate. European institutions are also hard
pressed to foster or influence national debates on ratification, and even less so,
synchronised national debates, with a common reform agenda and where these can
mutually influence each other.

24. The ratification phase. Treaty reform keeps on being partly based on the
template of international law. This is very obvious at the ratification stage. The entering
into force of any Treaty amendment requires that each Member State ratifies it in
accordance with its national constititutional provisions. This, quite obviously, implies
that ratification procedures vary across states. However, it might be argued that there
are two main models:
national referenda (a model constitutionally mandated in Ireland and Denmark,
and constitutionally inhibited in Germany)
64

national parliamentary sanction, which in some cases is given by special
parliamentary formations
In some cases the ratification of the new Treaty might require the amendment of the
national constitution, given that the substantive contents of the new Treaty provisions
might be in conflict with national constitutional provisions.

25. Ratification. Each and every Member State must ratify the proposed Treaty
amendments for the latter to gain legal force. Thus, one single no prevents the treaty

64
On European referenda, see Thomson, supra, fn 6.

from entering into force. Having said that, it must be added that the evolution of the
process of Treaty making has resulted in the search for temporary measures which can
prevent the failure of constitutional reform, provided only one Member State rejects
treaty change (consider the Danish rejection of the Maastricht Treaty in 1992, and the
initial Irish no to Nice). This tendency to provide alternative solutions in case of
negative votes might be said to point to the evolving constitutionalisation that has
emerged out of the IGC model. In federal or federal-type systems, constitutional
amendments generally require some kind of a qualified majority of the states or
provinces to enter into effect, whereas amendments to the charters of international
organisations can only be effected through unanimous ratification in all the Member
States. The ad hoc solutions arbitrated in the Maastricht and Nice processes might
suggest a further step in the Unions gradual transition from the latter to the former
model of law-making.

26. Moreover, the template of international law implies that the procedure of
national ratification is within the province of the exclusive competencies of each
national legal order. This entails that the European Parliament has no formal role in the
ratification process. However, its informal role has varied considerably. As its weight in
the institutional system of the Union has increased, its legally non-binding resolutions
on Treaty amendments have come to play a major role in shaping the attitudes of
national parliaments and of public spheres. The EP, via this national parliamentary
channel, has obtained what amounts to as an informal veto.
65


C) Summing up: the model evaluated

27. In this section, we have distilled out some common features of the last four IGCs
and evaluated these against the normative model. This reconstruction is premised on the

65
During the Maastricht negotiations the Italian and Belgian parliaments formed an
agreement, which stated that they would only ratify the accord if the EP had given its
assent. This also applied to Amsterdam (Interview with Commission official, January
1998). On indirect veto see Christiansen, supra, fn.60, p.45. The EP also affects the
ratification through the requirement of EP assent to enlargement. The EPs threat to
withhold assent on the 1995 enlargement provided it with 2 members in the 1995
Reflection Group. Cf. Maurer supra, fn 64.
notion that these IGCs could be reconstructed as functional equivalents to constitution-
making processes.
66

The IGC model has permitted the gradual specification and thickening of the
Unions material constitution, but our main finding is that this has taken place largely
without an attendant constitutional politics. In other words, the structure that has been
wrought has not been made subject to popular scrutiny in the way that democratic
constitution making presumes this. The IGC model contains no assured provision for
constitutional signalling, in the sense that there are no provisions for amplifying the
constitutional dimension and its implications for the work that is undertaken.
Second, we also found that the paucity of an explicit constitutional commitment
on the part of those calling for reform, did not prevent the reforms from becoming
increasingly constitutional in substance, and many of the terms actually used should
rightly be associated with constitution. Further, the very reasons for why such IGCs
were convened have increasingly come to relate to the Unions legitimacy problems.
We attribute this largely to the success of the efforts of those strong publics whose
formal role is marginal - to open up and redirect the process in an explicit constitutional
direction.
Third, the efforts of these bodies meet with a model that privileges executives
and elites, who operate in formally closed bodies, at most stages of the process. This
system contains no explicit provisions for ascertaining that there is popular support for
the work that is undertaken. The central defining feature of the IGC model is the
intergovernmental conference itself. IGCs are not strong publics, due to their quasi-
intergovernmental, diplomatic, character, and the secretive manner of their work and
deliberations.
Fourth, we observed some patterns of heightened transparency and
accountability to national and (increasingly so) European strong and less so general
publics. This development was not enough to abrogate the strong national imprint on
the process, however. This ensures that the results would be seen, interpreted and
ultimately ratified from the vantage-point of the national constituencies.
Fifth, and finally, this privileging of the national has not precluded common
bodies and networks from emerging that operate within the mindframe of common
constitutional traditions. In other words, despite the democratic limitations inbuilt in the

66
For one such account, specifically applied to the Amsterdam treaty process, see Fossum,
supra, fn 52.

model, patterns of interaction have grown up that help sustain the fusion of the common
constitutional traditions. This also lends a further democratizing impetus to the process.

IV. The Laeken process

A) The underlying rationale a distinct model?

28. In the below, an attempt is made to reconstruct the Laeken process, along the
lines of the five phases of the normative model of constitution-making that we put forth
in section II.
67
We seek to establish whether or the extent to which it complies with
deliberative-democratic requirements, and whether it represents an improvement on the
IGC in legitimacy terms.
In doing so, we considered the Laeken process as a whole, that is, assuming that
the Convention and the IGC are parts of a wider constitutional process.
68
We thus adopt
a comprehensive approach. This does not require assuming that the process would be
fruitful, that is, that it will bring about a constitutional change in the Union. The
assumption we make is a far more modest one, namely, that it only makes sense to
reconstruct and assess the different parts of the Laeken process as parts of a
constitution-making process aimed at constitutional change, that is, as a process aimed
at leading to a final ratification stage. Whether such a stage will be reached or not does
not change the fact that all parts are aimed at it.
This allows us to do two things. First, to consider the similarities and differences
between the IGC model and the Laeken process. We argue that the Laeken process is
innovative, but not in a radical sense, as it builds on and extends the IGC model.
However, we can claim that it is likely to emerge as a qualitatively different process of
amendment of the primary law of the Union.
69
Second, to assess the Laeken process in
light of the normative model put forward in II (4-11).


67
The open constitutional character of the process, and the explicit definition of the steps of
the process in the Laeken Declaration render such reconstruction rather plausible.
68
If the Convention fails to alter the subsequent process, or if its proposal is completely taken
apart by the IGC, or rejected during ratification, we can conclude that this addition did not
amount to much.
69
This is consistent with many of the analyses of the Laeken Convention process. See , for
instance Paul Magnette, Deliberation or Bargaining? Coping with Constitutional Conflicts
in the Convention on the Future of Europe, in Eriksen, Fossum, Menndez, supra (2004),
fn 4.
B) The Phases of constitution-making

29. Signalling. The first statement of the need to change the Unions material
constitution, the first signalling act, was J oschka Fischers Humboldt lecture in May
2000.
70
He made an explicit connection between Europes legitimacy crisis and the need
for a European Constitution. By doing this, he sparked a willingness to consider the
constitutional dimension of the European integration process.
71
A series of speeches
followed in which European political leaders addressed Fischers main claim. Tellingly,
these Responses to Fischer were characterised by being addressed to European
audiences, and not only to the usual national ones.
72

The case for reform gained momentum after the limited results of the Nice IGC
in December 2000.
73
Relative failure was acknowledged by the Masters of the Treaties
by annexing the short but important Declaration 23 to the Treaty of Nice.
74
The
Declaration is the first institutional expression of an explicit commitment to address the
constitutional dimension of the Union. It calls for a deeper and wider debate about the
future of the European Union. The platform for constitutional reform was delineated,
with reference to: (1) the legal status of the Charter of Fundamental Rights of the EU;
(2) the distribution of powers between the EU, the Member States and regions; and (3)
the role of national Parliaments in the resultant institutional architecture. Tellingly, the
ultimate goal was "to improve and monitor the democratic legitimacy of the Union and
its institutions, in order to bring them closer to the citizens of the Member States".
Contrary to expectations
75
, the public debate which followed all through 2001
was conducted around strong, not general publics.
76
However, European leaders seem to

70
See Christian Joerges, Yves Mny and J.H.H. Weiler (eds.), What kind of constitution for
what kind of polity? Responses to Joschka Fischer, Florence and Cambridge: Robert
Schuman Centre and the Harvard Law School, 2000.
71
Carlos Closa, The Implicit Model of Constitution in the EU Constitutional Project, in Erik
Oddvar Eriksen, John Erik Fossum and Agustn Jos Menndez, Constitution-Making and
Democratic Legitimacy, Oslo: University of Oslo, 2002, pp. 53-74.
72
A collection of some of the leading speeches can be found in Mark Leonard (ed.), The
Future Shape of Europe, Brussels: Foreign Policy Centre. See also the Transatlantic edition
of Internationale Politik. Among the numerous discourses, Jospins attracted most
attention. See also Lionel Jospin, Ma Vision de lEurope et de la mondialisation, Paris:
Plon, 2001.
73
See, for example, Florence Delouche-Gaudez, La Convention pour llaboration de la
Charte des droits fondamentaux : une mthode constituante , in Renaud Dehousse, Une
Constitution pour lEurope ?, Paris : Presses de Sciences Po, 2002, pp. 177-226.
74
OJ C 80, of 10 March 2001, pp. 85-6.
75
Report on the Debate on the Future of the European Union, 9520/01, POLGEN 14, Brussels
8 June 2001.

have considered that the undoubtedly strong institutional support was enough to launch
a constitution-making process. This was done in the Laeken Declaration of December
2001. This Declaration provided a diagnosis of the EUs problems (democracy and
efficiency), and presented a menu for reform, which further elaborated on the one
contained in Declaration 23. More to the point, it determined the basic lines of the
reform process, which would not be exactly the same as those followed in the previous
IGCs. The main novelty was the convening of a Convention, partially modelled on the
Charter one, to prepare the work for the IGC.
As a result, the signalling phase was marked by a clear contrast between the
strong mobilisation of political elites and strong publics and a very low level of
participation of general publics. The decision to convene a Convention and to equip it
with a mandate was taken by the European Council, in line with the IGC model, and not
in response to a significant popular endorsement of the claim, as would be required by
democratic standards.

30. The initial deliberative phase. The Convention was required by the Laeken
Declaration to be the central actor in the initial deliberative phase. The Declaration
aimed at defining with some precision the framework within which the Convention
should act, something which stood in some tension to the constitutional mission
assigned to it. The members of the Convention had to live with the ensuing tension
between its constitutional role and the constrains imposed upon it by the European
Council, if only because the process was so defined that the European Council, within
the IGC, would retain actual decision-making power through the IGC.
On the one hand, the Convention was outlined in considerable detail by the
Laeken Declaration. First, its composition was precisely defined. The Convention was
characterised as a strong public representative of European strong publics. The Laeken
Declaration assigned a majority of the seats in the Convention to parliamentarians,
European and national ones,
77
who entered as delegates of the institutions from which

76
The deeper and wider [national] debate(s) cannot be said to have resulted in national
public spheres being coordinated, in the sense of discussing simultaneously around a
common agenda. The problem seems to have been not so much the lack of convergence, as
the absence of discussion.
77
The actors present were mainly institutional (national parliaments and governments, the
EP, and the Commission), including observers from institutions and social movements. The
applicant countries were represented in the same way as were the Member States. For
assessments of its representative character, see Carlos Closa, The Convention Method and
the Transformation of EU Constitutional Politics, in Eriksen, Fossum and Menndez
they had originally been elected.
78
Representatives of national governments and of the
institutions of the Union were assigned the remaining seats. The European Council went
so far as to decide the idenitity of the three leading members of the Convention, its
President and its two Vice-Presidents.
79
Second, it was clearly expected that debate
within the Convention would spark discussion in national public spheres
80
, and thus
place the Convention itself as an adequate interlocutor of European civil society.
81

General publics would thus feed back onto the strong public, i.e. the Convention. Third,
the Laeken Declaration defined the Conventions mandate in some details, through
posing a lengthy set of questions. The Convention was requested to consider them, and
formally speaking, to deliver its reply through one or several proposals.This meant
assigning the Convention with an agenda-setting role, whilst decision-making was left
to the European Council. Fourth, The Convention was given a year to deliver its
proposal(s)
82
. The setting of a time limit, which was only very modestly increased, was
a major constraining factor. The exhaustion of time to explore differences obviously
fosters certain types of actors and patterns of interaction.
83
Fifth, the Convention was set
up to meet on an intermittent rather than on a continuous basis. The Secretariat, and the
president and the two vice-presidents, were full-timers. All the others held other full-
time tasks (national parliamentarians were provided with additional resources,
however
84
). The full-timers, concentrated in the Predidium and Secretariat, which were

(eds.), supra (2004), fn 4, pp. 183-206; and Jo Shaw, Process, Responsibility and Inclusion
in EU Constitutionalism, 9 (2003) European Law Journal, pp. 45-68.
78
Thus, quite a few of the members of the Convention had some kind of popular mandate, but
they were not elected as members of the Convention by citizens directly. Consequently,
their election was not linked directly to their views on the constitutional future of the EU.
Convention membership was not subject to any electoral contest. Their chain of legitimacy
as members of the Convention was long; moreover, the criteria according to which election
took place were dependent on each nominating institution, and consequently, varied
considerably.
79
Valry Giscard dEstaing was nominated President, and Giuliano Amato and Jean Luc
Dehane Vice-Presidents.
80
Some observers went as far as claiming that this could have a catalytic role, and lead to the
interconnection of European public spheres. See Habermas, fn 5.
81
This was to be done through the Forum, see
http://europa.eu.int/futurum/forum_convention/index_en.htm.
82
The Convention will hold its inaugural meeting on 1 March 2002, when it will appoint its
Praesidium and adopt its rules of procedure. Proceedings will be completed after a year,
that is to say in time for the Chairman of the Convention to present its outcome to the
European Council.. See the Laeken Declaration on the Future of the European Union. The
text of the Declaration can be found at
http://europa.eu.int/futurum/documents/offtext/doc151201_en.htm.
83
Justus Schnlau, New Values for Europe. Deliberation, Comprise and Coercion in Drafting
the Preamble of the Charter of Fundamental Rights, in Eriksen, Fossum, Menndez, supra,
fn 4 (2003), pp.112-32.
84
Interview with National Parliamentary Member of the Convention, Spring 2003.

closest to the Council, obviously were also able to influence and guide the process far
better than were the part-timers. Sixth, whilst it does not appear from public sources that
any Convention Member was equipped with a fixed and/or rigid mandate, it was rather
predictable that government representatives would be equipped with a rather strict
mandate which would prevent them from revising their preferences in view of the
arguments put forth by other Convention members.
85
By assigning a central role to
those national government representatives, the Council reduced the deliberative
potential of the Convention, which was even further reduced once many Member States
replaced their initial representatives with their Foreign or European Ministers, hence
shifting some of the inevitable intergovernmental bargaining onto the Convention.
Seventh, and finally, the sequencing of the Laeken process was bound to result in
problems of forward-linkage. At least formally, whatever the Convention would
decide would be open to revision or even rejection by the IGC.
86

On the other hand, the Convention tried to increase its autonomy and take its
constitutional identity as seriously as possible. First, it soon redefined its role in an
unambiguous constitutional sense. There was a diffuse feeling, prominent among
Members of the European Parliament and also of the Member States which most openly
supported the Laeken Declaration, that the Convention should work as if it was a
Constitutional Convention, thus emulating the basic assumption of the Charter
Convention (writing as if the outcome would be bound to become the Constitution of the
Union). This explains why Valry Giscard dEstaing claimed at the opening of the
Convention that its proper task was to elaborate one draft Constitution, and not a
collection of vague diagnoses;
87
and why he ended up being supported by a vast
majority of Convention members.
88
Second, the Convention exploited all opportunities
provided by the silence or lack of clarity of the Laeken Declaration to increase the

85
Interview with National Parliamentary Member of the Convention, Spring 2003.
86
That this has coloured the work of this Convention is quite apparent. Consider the
behaviour of its president who throughout the process has been actively seeking support
among the government representatives. He has done this through consultation, through
visits in national capitals and through biasing his assessments of the deliberations in the
Convention in a direction favourable to their interests and positions. Cf. Paul Magnette,
The European Convention: Constitutional Deliberation or International Negotiation? and
Renaud Dehousse and Florence Deloche-Gaudez, La gense dune constitution
transnationale: lments danalyse, papers delivered at the workshop European
Integration and Constitutionalism after the European Convention, Sciences Po, Paris, 18
and 19 December 2003, on file with the authors.
87
V. Giscard d'Estaing, Introductory speech to the Convention on the Future of Europe, SN
1565/02, available at http://european-convention.eu.int/docs/speeches/1.pdf.
88
This could be seen as a response to many of the expectations that had been built up since
the Fischer speech, although these differed greatly in constitutional terms.
salience of their role. For example, the Convention established its own rules of
procedure, which went quite a long way to ensure the transparency of the process.
89
In
doing so, its members affirmed themselves not only vis--vis the Member States, but
also vis--vis the Praesidium. Giscard dEstaing tried to impose rules of procedure
which followed the Councils template. This proposal met with strong opposition from
Convention members, and resulted in major amendments.
90
Third, the Praesidium used
the decision to set it up as a deliberative body to avoid the emergence of strong factions
within the Convention.
91
This was why voting was generally ruled out as a means of
determining whether a common will has been formed among the Convention
members.
92
Fourth, the Praesidium determined the sequencing of the Conventions
work. This had a considerable impact on the way its work was conducted. The
Convention was said to have undergone three distinct phases: (1) an initial listening
phase; (2) a subsequent so-called deliberative phase (with 11 working groups);
93
and
(3) a final proposal phase. Such an ordering of the debates was important, in at least two
ways. First, the listening phase gave time for the members to become socialised into and
to identify themselves as Convention members, with increased support for the
Conventions constitutional role as its result. Second, the rather short time allocated to
the third phase explains the shift from deliberation to bargaining at the very end of the
process.
All these traits taken together reveal that through the Laeken Declaration,
Member States placed significant constraints on the Convention. Under such
circumstances, it would not be convincing to consider it as an independent body. It must
also be noted that the Convention cannot be equated with the constitutional assembly,

89
With some limitations, though. The meetings of the Praesidium took place behind closed
doors, and no proper compte-rendu was rendered available afterwards. The meetings of the
Working Groups and the Discussion Circles were summarised in an anonymous way, with
no reference to the identity of those arguing (by means of using the style formulae of one
Member says).
90
Olivier Duhamel, Pour LEurope, Paris: Seuil, 2003.
91
Voting actually did take place in the Presidium, on April 23
rd,
2003. This episode has been
considered by some as revealing the authoritarian (and strategic) style of the Praesidium.
92
Deliberationists disagree on the deliberative quality of voting. Some see it as destructive to
the forging of consensus, whereas others see voting as the only assurance of accountability.
Applied to the Convention, it could be argued that in the absence of voting, the Presidium
could become the authoritative interpreter of the common will of the Convention, without
reference to any intersubjective test of the quality of such a common will, which is
problematic.
93
The members of the Convention succeeded in influencing the choice of subject matters to
be discussed by working groups, as a bottom-up initiative was behind the convening of a
working group on Social Europe. See Agustn J. Menndez, Rights to Solidarity: Balancing
Solidarity and Economic Rights, in Eriksen, Fossum, Menndez, supra (2003) , fn 4, at pp.
196ff.

which plays such a central role in our normative model. As an Assembly, it is
configured as a strong public; but contrary to the requirement of the normative model,
the Convention does not make a constitutional proposal directly to the people. At least
prima facie, the IGC retains the actual decision-making power. Therefore, the
Convention is a strong public, the main goal of which is to set an agenda for
constitution-making and to explore the potential outcomes of such an exercise, rather
than a constitutional assembly proper. Finally, the Convention did not perform very
brilliantly in its role as catalyst of a wide public debate in European general publics. It
awoke some, but minoritarian debates, which remain fragmented.
94


31. In between deliberation and decision-making. After the conclusion of the
Conventions work, and before the opening of the IGC, there was further room for
deliberation. This aspect of the second phase was (unduly) neglected, even if it carried
considerable democratic potential. The Draft Constitutional proposal could have served
as a common agenda for overlapping public discussions in all the Member States. A
synchronised public debate in all present and future Member States would have allowed
a major democratic feedback. But the Member States agreed to hurry up from the end of
the Convention work, officially on J uly 18th, and to the opening of the IGC on October
4th.

32. The decision-making phase. In principle, the decision-making phase in the
Laeken model does not depart from that of the classical IGC, as described above. As
just said, the Laeken Declaration foresaw a purely advisory role for the Convention, and
reserved the true decision-making role to the IGC. Thus, once the Convention produced
its final work, the IGC dynamics got started. However, the key question posed by the

94
True, the Eurobarometer reflects a consistent majority in favour of the drafting of a
European Constitution. But citizens do not seem to relate their call for a European
Constitution very closely with the Laeken process, which is ignored by many and known by
few. Although far from being a concluding argument, this provides anecdotal but telling
evidence on how Europeans assess the constitutional nature of the Draft Constitution. Cf.
Flash Eurobarometer 159: The Future European Constitution, Brussels: European
Commission, 2004 available at
http://europa.eu.int/comm/public_opinion/flash/fl159_fut_const.pdf , especially at p. 33:
Results show that a large majority of the European public still feels badly informed on
questions relating to the draft of the future European Constitution () Results show that a
majority of the public supports the idea of a Constitution for the EU: a clear majority of
citizens throughout all 25 countries are of the opinion that the European Union must adopt
a Constitution and that it is necessary for the well-functioning of its institutions.
Laeken process is: how much of a change to the IGC model will the injection of the
Convention into the process be?
There are two main dimensions to be considered. One is procedural, and the
other is substantive. First, the Convention increased the degree of transparency and
involvement of societal actors in Treaty reform processes, even if it fell short of what
would be required by our normative model. This modest but decisive improvement has
rendered increased transparency of the IGC unavoidable, at least with regard to the
circulation of documents,
95
and on the need for national representatives to give reasons
and justifications. True, documents were also available during the last two IGCs, and
some national governments went public with their positions. But the deliberative style
(30) has made a two-fold difference as comparedto previous processes: (i) it has
revealed the reasons or lack of them behind the preferences of all national governments;
and (ii) it has undermined strategic appeals to the national interest, by revealing the
plurality of preferences among national actors (national parliamentarians, MEPs,
national government representatives in the Convention and heads of state and
government at the IGC). As a result, the secretive character of negotiations has been
mitigated, while national governments have increased their efforts to justify their
positions within the IGC before the public(s). It goes without saying that all this does
not necessarily translate into greatly increased public influence at the negotiating stage,
however. Second, it is not yet clear what impact the substantive choices of the
Convention will have on the results of the IGC. The IGC did adopt the Conventions
text as its basis for negotiations, thus the Convention did succeed in determining the
basic agenda for the IGC. However, the concrete extent and relevance of the substantive
influence could only be determined when, and if, the IGC approves the Draft
Constitution. In doing this, one would have to take into account the extent to which the
Convention restrained itself from proposing certain things in order to maximise chances
of getting the Draft Constitution accepted by the IGC, while avoiding a rash judgment
based on the final solution adopted for the most salient issues on the public agenda,
such as the Unions institutional structure.
Finally, the symbolic aspect of framing the draft in constitutional terms could be
highly relevant, as it could trigger a change in peoples self-conception as European
citizens. The symbolic significance of the elaboration of a Constitution is, in this

95
The circulation of documents has been rendered easier by the spread of Internet. However,
this is an exogenous factor.

regard, undeniable.
96
When people are told and recognise that they are involved in a
constitutional debate, their expectations change, in line with the changes to the
standards that they use to assess both the process and the result. This could (eventually)
act as a constraining factor on the IGC, if its members felt that citizens could not
identify the Draft Treaty with a Constitution unless the Conventions basic choices were
respected.

33. The Second Deliberative Phase. There will be time for a new deliberative phase
between the completion of the IGC and the start of the ratification stage. This phase will
be crucial in order to ensure the democratic legitimacy of an eventual new
Constitutional Treaty, on three counts. First, the degree of political mobilisation and the
intensity of the debates will be essential in order to ensure a proper discussion of the
proposals and of the underlying issues. Given the democratic shortcomings of all
previous phases (when assessed against our normative model), a strong democratic
input is needed at this stage to make the Constitution a democratic one. Second, the
degree to which the different European public spheres will interlock will help determine
the European character of the debate. A simultaneous debate on the same agenda,
established by the draft constitutional proposal would constitute a unique test of the
actual degree of interconnection of the different European public spheres.
97
Third, the
sense and direction of the debates could help determine the content to be given to the
ratification provisions of the Draft Treaty.

34. The ratification phase. In principle, this phase might be similar to the ones in the
IGC model. However, two questions have emerged which might require qualifying such
a claim, if and when the ratification phase is reached.
First, the general rule seems to keep on being that the entry into force of the
Draft Treaty would require unanimous ratification by all Member States, as is the case
with international treaties, but not with constitutions, not even federal constitutions.
However, the Declaration on the Final Act of Signature attached to the Draft Treaty
indicates that if four fifths of the Member States would have ratified it, and one fifth

96
Juliane Kokott and Alexandra Rth, The European Convention and its Draft Treaty
establishing a Constitution for Europe: Appropriate Answers to the Laeken Questions?, 40
(2003) Common Market Law Review , pp. 1315-1345.
97
See Habermas, supra, fn 5 and fn 12; Klaus Eder and Hans Jrg Trenz, The Making of an
European Public Space. The Case of Justice and Home Affairs, in Beate Kohler-Koch (ed.),
Linking EU and National Governance, Oxford: Oxford University Press, 2002, pp. 51-68.
would not, the Council would have to consider what to do. It is not far-fetched to claim
that such a provision will be interpreted as suggesting that ratification would be possible
even if not unanimously, thus, as characterising the Draft Constitution as a Constitution,
not a Treaty.
98

Second, the ratification procedure is supposed to be governed by national
constitutional law. However, we could wonder whether the constitutional dimension of
the new text might not make it advisable and perhaps compulsory for each Member
State to inject a stronger test of the support of its national citizens than was the case
with previous Treaty amendments. To put it more specifically, it might be advisable to
have referenda even in those states where such were not called upon for previous Treaty
amendments.
99


C) Summing up: the Laeken model assessed

35. When compared to the standard IGC model, the Convention cannot but be seen
as a major step in the direction of constitutionalisation of Treaty amendment
procedures. The explicit character of the signalling, and the transparent and open way
in which most of the work of the Convention was conducted have increased (even if
modestly) the inclusivity of the process.
100
As was argued, this has not failed to have its
impact on the unfolding of the Laeken IGC. Although a fully conclusive argument
could not be made if, and until, the IGC agrees on a constitutional bill, there are clear
indications that the argumentative logic of the Convention has increased resort to
arguments even in the midst of intergovernmental negotiations (32). And, despite

98
Cf., for example, the debate which followed the Conference de Presse de Monsieur Jacques
Chirac, President de la Republique, sur lEurope, 29 April 2004, available at
http://www.elysee.fr/cgi-
bin/auracom/aurweb/search/file?aur_file=discours/2004/CP040429.htm, summarised in
Lunanimit demeure la rgle pour la ratification et la rvision du texte, Le Monde, 17 May
2004.
99
For a defence of a synchronised European constitutional reform to tackle with the issue ,
see Francisco Rubio Llorente, Constitutionalism in the Integrated States of Europe,
Working Paper 5/98, Jean Monnet Program, Cambridge: Harvard and and also in El
referendum necesario y el superfluo, EL PAS, 11 de Julio de 2003. A first analysis of
national debates can be found in
http://www.euobserver.com/index.phtml?print=true&sid=9&aid=11413.
100
Kokott and Ruth, supra fn 98 at 1316; Angelo Antonio Cervati, On the Consolidation and
Simplification of the European Treaties and the Convention Procedure in Roberto Miccu
and Ingolf Pernice (eds.) The European Constitution in the Making, Baden-Baden: Nomos,
2004, at pp. 121. See also Closa, supra fn 79; Erik Oddvar Eriksen and John Erik Fossum,
Europe in Search of Legitimacy: Strategies of Legitimation Assessed, 25(2004)
International Political Science Review, forthcoming.

having missed the first opportunity in-between the end of the Convention and the
opening of the IGC, an eventual Draft Constitution might become the catalyst for a
Euro-wide synchronised debate after the IGC will (eventually) put forward a
constitutional proposal. National publics will be discussing on the basis of a common
agenda (the Draft Treaty) and at the same time, something which could lead to common
learning and redefinition of preferences in line with arguments made in other countries.
Finally, the ambiguity of the ratification provisions could lead to a debate on the terms
upon which constitution-making should be undertaken in Europe from a European,
democratic perspective.

36. The assessment cannot be equally positive when we compare the Laeken process
to our normative ideal model. First, the signalling was characterised by the contrast
between strong institutional commitment and dismal popular mobilisation. This casts
the shadow of top-down orchestration upon the process, and requires later infusions of
democratic legitimacy. Second, the Convention cannot be properly described as a
constitutional assembly. It was required to perform some of the duties which will be
characteristic of one (as a strong public which should mobilise and interact with general
publics), at the same time that it was severaly constrained in the performance of such a
role. Even if the Convention made use of quite a bit of its room of manoeuvre to
reaffirm its constitutional identity, several problems remained, among which, as
noticed, was the forward-linkage to the IGC. Third, a major opportunity to increase the
democratic standing of the process was lost by rushing from the end of the Convention
to the beginning of the IGC. As indicated in the previous paragraph, a Euro-wide debate
could have been sparked, from which a political mandate to national representatives in
the IGC could have emerged. To this we must add, fourthly and lastly, that even a
successful constitution-making process is not devoid of risks. One such is that the
process might never acquire a high democratic dignity. In that case Europeans would
have to face a text claiming the dignity proper of a constitution, but without the relevant
credentials. This might undermine further democratization in the EU, through the
misuse of the evocative power of the Constitutional term.




V. Can a constitution render the Union legitimate?

37. A final caveat. The democratic writing of a Constitution for Europe, when it will
take place, will constitute a major contribution to mending the democratic deficit of the
Union. If European citizens can see themselves as authors of the grounding norms of
Community law, it cannot be doubted that a major step will have been taken towards
reducing the degree to which Europeans regard their law as externally imposed upon
them, or to put it more precisely, the heteronomic character of the European legal order
(cf. 14). But no matter how democratic a Constitution, democracy is not merely a
matter of constitution-making, in the same way that autonomy is not just a matter of
fundamental rights protection. In democratic theory, the Constitution is best understood
as a frame or map which grounds and enables democratic political action, the solving of
conflicts and the coordination of action in view of the common interest. The higher
democratic dignity of a truly democratic constitution should come hand in hand with the
central role of ordinary statutes as the articulation of the common will. A non-
democratic constitution is a straitjacket on democratic will formation, but a democratic
constitution which exhausts the political space is an equally asphyxiating straitjacket.
The very normative reasons that require a bifurcation of the principle of legality into
constitutional law and ordinary statutes require the avoidance of the over-
constitutionalisation of the European legal order.

VI. Conclusion

In this article, we have reconstructed and assessed the different processes
through which the material constitution of the Union has been written and amended. We
did so by reconstructing the main features of the IGC and Laeken processes, including
the Convention on the future of the European Union and the 2003-4 Intergovernmental
Conference, against the requirements of a normative model of constitution-making.
This model operationalised the basic procedural requirements of deliberative democratic
theory.
In this article, we have come to three basic conclusions. First, that the most
recent IGCs (from the Single European Act to the Nice Treaty) share a sufficient
number of features, as to make up an IGC model, which distinguishes itself from earlier

IGCs in that it has become increasingly constitutionalised. This evolution was clearly
related to the constitutionalisation of the Unions substantive constitutional law.
Second, that the Laeken process must be seen as a further step in the transformation of
the way in which Union primary law is written. The Laeken process, in contrast to the
previous IGCs, was explicitly presented as a matter of constitution-making. But of
greater importance is that the Laeken process carried further the democratization of
constitution-making, through its heightened degree of inclusivity and transparency.
Third, a simplified and streamlined written document which reflects the
substantive constitution of the Union in a readable way could thus be considered as a
prior step to a full constitutionalisation of the Union in a democratic sense. Moreover,
the formalisation of the constitution could render more visible the fact that Europeans
share a European legal order, which constitutes a community of risks among them. As
such, it could enhance the predisposition of European citizens to acknowledge each
other as citizens of Europe.
When the Laeken process is assessed against the normative model of
deliberative democratic constitution-making, it is also clear that there are noticeable
shortcomings. The degree of interconnection of strong and general publics is low, while
inclusivity and transparency are insufficient to characterise the process as a properly
constitutional one, from a deliberative democratic perspective. Democrats would be
well advised to remember that their first command is not to take the name of the
constitution in vain. These procedural shortcomings are amplified by the substantive
limitations of the Draft. Thus, acknowledging the Laeken Constitutional Treaty the full
dignity of a democratic constitution would be confusing and inadequate from a
deliberative-democratic standpoint. Moreover, it could lead courts - European and
national - into trouble. The Constitutional Treaty can however lay the foundations for
We the European people to speak. This is however far more than most had imagined
when the Convention started its work.
Appendix

TABLE 4
National Procedures of Ratification of the Draft Constitution


Countries Referendum Parliamentary Vote
Austria Possibly a referendum Ratification by
parliamentary vote
Belgium Ratification by
parliamentary vote
Cyprus Possibly a referendum Ratification by
parliamentary vote
Czech Republic Ratification by referendum,
probably 2005

Denmark Ratification by referendum,
27 September 2005

Estonia Ratification by
parliamentary vote
Finland Possibly a consultative
referendum
Ratification by
parliamentary vote
France Ratification by referendum
29 May 2005

Germany Ratification by
parliamentary vote,
probably J une 2005
Greece Ratification by
parliamentary vote
Hungary Ratified by parliamentary
vote on 20 December 2004
(as second MS)
Ireland Ratification by referendum,
probably October 2005


Italy Ratification by
parliamentary vote
(approved by lower
chamber 25 J anuary 2005,
awaiting vote in Sentate)
Latvia Ratification by
parliamentary vote, early
2005
Lithuania Ratified as the first MS,
by an overwhelming
majority in the
parliament on 11
November 2004 (Seimas)
Luxembourg Ratification by referendum
10 J uly 2005

Malta Ratification by
parliamentary vote
(probably J uly 2005)
Netherlands Consultative referendum 1
J une 2005
Ratification by
parliamentary vote
Poland Referendum, probably late
2005
Ratification by
parliamentary vote
Portugal Ratification by referendum,
probably 2005

Slovakia Ratification by
parliamentary vote
Slovenia Ratified by parliamentary
vote on 1 February 2005
(as third MS)
Spain Approved in consultative
referendum on 20 February
2005 (by 77% of votes)
Ratification by
parliamentary vote
Sweden Ratification by
parliamentary vote,
possibly December 2005
United Kingdom Consultative referendum in
2006
Ratification by
parliamentary vote

Sources: Convention Watch, Embassies, Ministries of Foreign Affairs
Prepared by Gitte Hyttel Nrgrd