Memorandum by Professor Mads Andenas,
University of Leicester and Norwegian Centre for Human Rights,
University of Oslo and Professor Andreas Follesdal, Norwegian
Centre for Human Rights, University of Oslo
THE REFORM TREATY, NATIONAL CONSTITUTIONS
AND LEGITIMACY
The outline of a reformed treaty (ORT) (Annex,
European Council 2007) seeks to bring the EU out of its two-year
hibernation since two referendums rejected the Constitutional
Treaty ("CT") in 2005. This note addresses what ORT
resolves in the relationship to national constitutions and of
the longer term legitimacy crisis of the EU?
The note argues that the CT as well as the ORT
takes several valuable steps to ensure that the European Union
becomes more trustworthy and comes "closer to the people".
The simplification and increased transparency are great improvements.
In addition, ORT contains three interesting responses: a new subsidiarity
mechanism; increased opportunities for representative and "participatory"
democratic accountability (Smismans 2004, Kohler-Koch 2007); and
an increased focus on human rights.
Section 1 provides some fragments of the history
of the European Union, to justify the diagnosis that it needs
increased levels of trust and arrangements for trustworthiness
among Europeans and their political leaders. Section 2 argues
that the European Union has certain federal elements that require
four peculiar forms of "balancing". Section 4 discusses
the increased need for trust among Europeans. Section 4 addresses
the role of the Charter on Fundamental Rights as a trust building
mechanism. Sections 5 to 7 address how the CT and the ORT contribute
or detract from each of these three forms of balancing. The conclusion
is that certain elements of the CT and of the ORT would help European
institutions create and maintain their own support among European
citizens and officials.
1. THE BACKGROUND
SETTING
The recent summit discussions served as a thought-provoking
reminder of the horrid background to which the European Union
was a response. The seeds of what we now call the European Union
were sown after the War of 1939-45, when French and German politicians
agreed to take steps that would prevent future wars on European
soil. On May 9, 1950, Robert Schuman, Foreign Minister of France,
announced that the two countries would put their coal and steel
production under a common authority. This would make it impossible
for either country to arm for war against each other. Several
developments in the EU have created quite new challenges.
Deepening and widening European integration
In the intervening fifty years European integration
has "deepened" into more extensive cooperation, and
"widened" to include many more countries than the original
six:
The populations had largely acquiesced in the
early forms of cooperation, but at least three features—increased
interdependence, diversity and the ambitions of the central authorities—changed
popular attitudes toward the project of European integration.
The citizens and their member states became increasingly interdependent,
which required more trust among the citizens and elites. The common
arrangements had to accommodate a greater diversity of institutions,
rules and legal and cultural practices. Finally, the objectives
of the cooperation became more ambitious, ambivalent and contested.
They came to include not only peace, but also economic growth
to be secured through the free movement of goods, services, persons
and capital, and a common monetary policy among some. These new
objectives were not as uncontested as peace: They require trade
offs, they create distributive conflicts, and at least some citizens
see them as threats to domestic welfare arrangements rather than
prerequisites to maintaining them, as many politicians would argue.
Popular and Legal Challenges, Expansion
The Treaty on European Union agreed in Maastricht
1991 met with strong protests in Denmark and France. In Germany
and Denmark the Treaty ratification was also challenged on legal
grounds. The result was that national and European political elites
understood that popular and legal support for the EU was at risk.
In the late 1990s it became clear that the EU would
have to change to accommodate the large number of new members
from formerly Eastern Europe. The sheer number of applicant states
would require fundamental changes in how to make decisions. In
addition, with the partial exception of Poland these were predominantly
small countries, poorer than existing member states, and without
a recent, well established strong democratic political culture.
Weakened domestic democracy
European integration has increased executive
power and decreased national parliamentary control. To quite an
extent, governments can effectively ignore their parliaments when
making decisions in Brussels. Hence, European integration has
meant a decrease in the power of national parliaments and an increase
in the power of national executives. The directly elected European
Parliament is weak, though it gains some power with the CT.
Human rights in the EU
Finally, the treaty basis and substantive human
rights policies of the EU have often been accused of being patchy,
even inconsistent. The German Constitutional Court in particular
made clear that human rights must be more explicit in the EU.
This is not to deny that the EU has also been
committed to the pursuit of human rights since the beginning—at
least in a diffuse sense, in that the Rome Treaty of 1957 speaks
of the commitment to "preserve and strengthen peace and liberty".
The European Court of Justice and the European Council has often
underscored the need to respect human rights, and the Treaty on
European Union mentions human rights (Art 6). Furthermore, all
agreements on trade or cooperation with third countries since
1992 stipulate that human rights are essential in the relationship.
In particular, the trade and aid pact with developing countries—The
Cotonou agreement and the European Initiative for Democracy and
Human Rights—holds that trade concessions and aid programs
can be affected if the government violates human rights.
These were some of the factors that motivated
political leaders to agree the "Convention on the Future
of Europe" that first met February 28, 2002, to recommend
how to make the Union more democratic, more transparent and more
efficient. In 2004, European and national politicians had hoped
that a new "Constitutional Treaty for Europe" (CT) would
help solve what has become known as the "Legitimacy Deficit"
or the "Democratic Deficit" of the European Union.
But in May and June 2005, a majority of voters
at referendums in two member states rejected the proposal. The
rejection in France and the Netherlands left many questions unanswered—such
is the nature of referendums by unaccountable citizens. Why did
so many vote "no"? Were they dissatisfied with how the
revised European Union would work, or are they mainly frustrated
about how they thought it already operated—or were they
protesting their domestic politicians? Would they rather have
no such "constitution" for Europe, or would they want
some changes to the Constitutional Treaty? Some of these questions
have not been resolved, but the heads of state have sought to
interpret and respond to these challenges by agreeing in June
2007 to the ORT. What are we to make of it? In particular, is
the ORT likely to resolve the legitimacy deficit and secure a
stable EU? In order to assess the ORT, we must consider some lessons
and challenges from federal thought.
2. FEDERALISM
For our purposes, a federation is a political
order where competences are constitutionally split between sub-units
and central authorities. By this modest definition, the EU clearly
has strong federal features—insofar as it has a constitution
at all, see the discussion by Andenas, Mads and Gardner, John
2001. This split of competences is made more clear in the CT—and
is kept in the ORT. Articles I-12—I-18 lay out areas of
exclusive competence of the Union institutions, and other exclusive
competences for the Member States. Furthermore, central decisions
are explicitly placed beyond the control of any single sub-unit.
The CT shifts the default procedure of decisions in the Council
of Ministers from unanimity; and the European Parliament gains
certain new powers. This is not to deny that Member States remain
influential and exercise control, especially since they participate
in central decision-making bodies typical of "interlocking"
federal arrangements. They also retain veto on future treaties.
These federal features are not affected by the
terminological changes introduced in the ORT. And they are compatible
with many other claims about the EU. Considered as a federal political
order, Europe remains quite decentralised. Even with the
CT it would lack a common defence policy typical of federations,—even
though it might "frame" one (Art I-16; McKay 2001, 3;
Moravcsik 2001, Moravcsik 2002). And the ORT includes a phrase
that "national security remains the sole responsibility of
each Member State." (Annex 1, 4).
Nor does the fact that many competences remain
shared between sub-units and central authorities make it less
of a federation. And the federal nature of the EU does not imply
more centralisation—though the Preamble seems to envision
such a "post-federal" future since it describes the
peoples of Europe "united ever more closely, to forge
a common destiny" (My emphasis).
The Union also has important confederal elements
(Meehan 2001). An example is the right of member states to withdraw,
confirmed in the CT (Art. I-59) and in the ORT (16). Yet some
features are clearly beyond standard accounts of "confederation",
and exhibit elements typical of federations. For instance, the
Union's subjects are citizens and not only member states (Van
Gend en Loos v. Nederlandse administratie, Case 26/62 [1963]
ECR 1. cf. Weiler 1996). And common decisions need not be unanimous.
The agreed ORT will lead to a treaty that to
a large extent codifies rather than overhauls the present "operating
system" of the EU. Still, the new treaty would strengthen
some of the federal features of the future European political
order: The allocation and division of authority—"competences"
becomes clearer, between member states and union organs. This
makes it even more appropriate to draw lessons and standards from
federal thought. This federal perspective has several implications
for assessing the legitimacy and the sustainability of the ORT.
The comparative study of federations suggests
that their institutions must achieve and maintain four complex
forms of "balancing" or stability at the same time:
— Between the Member States and the
Union institutions;
— Among the Union institutions;
— Among Member States within
the Union institutions, since the members partake of the common
decision making authority—a characteristic of "interlocking"
federal institutions;
— And, importantly, stable institutions
must foster trust and "dual loyalty" among the citizenry
and officials, sufficient to ensure willing support both for the
institutions of their member state and of the Union. Thus citizens
must balance two political loyalties.
3. TRUST
Trust and trustworthiness among citizens and
officials faces special challenges in political orders with federal
elements if they are to remain "balanced" in the senses
of maintaining their federal features and creating their own support.
To understand the significance of trust-building
measures, a brief aside on trust among "contingent compliers"
is necessary.
The need for trust and trustworthiness arises
under circumstances of complex mutual dependence. Shared expectations
of others' future compliance is central for the long-term stability
of a just political order. Such trustworthiness is crucial to
foster willing support and "overarching loyalty" among
Union citizens, not only toward compatriots of their own member
state but toward the union citizenry and authorities as a whole.
This challenge, of building an "overarching loyalty",
is especially demanding in the EU. That union consists of well-established
Member States that could in principle exist independently, and
who hence are prepared to bargain even harder about many particular
choices (Filippov, Ordeshook, and Shvetsova 2004, 315). A European
party system which could foster such cross cutting loyalties is
drastically under-developed (ibid 321).
Yet trust and trustworthiness have become increasingly
important among increasingly interdependent Europeans, and even
more so with elements of the CT that will survive. The Reform
Treaty will replace unanimity with another default legislative
procedure. It will require a double majority in the Council (Art
I-23), and involve co-decision by the European Parliament and
the Council together. This change removes the safety valve of
unanimity, and increases the need for trust and trustworthiness
among individuals and among their representatives. Each person
must to a greater degree be prepared to adjust or sacrifice their
own interests—or those of their electorate—on any
single issue, for the sake of other Europeans. A unanimity rule
offers protection to citizens of one Member State that they will
not be forced into an arrangement contrary to their own interests.
However, the multiple veto points of unanimity which protect each
member state also leads to deadlock and stagnation. The result
in the EU was to prevent common action even when obviously in
the interest of all. Majority rule, or qualified majority rule,
promises more decisive decision making. But stable popular support
for such qualified majority procedures requires a well-developed
trust in other Europeans and officials (Nicolaidis 2001). It is
therefore unsurprising that the default qualified majority procedure
does not apply in a number of key cases urgent for national sovereignty.
In particular, the agreed ORT assures national control over foreign
policy.
The CT and the ORT would maintain and bolster
at least two institutional mechanisms for preference formation
toward an "overarching loyalty": interlocking federal
arrangements, and increased opportunities for contestation among
political parties. Both of these are aided by increased transparency.
We submit that the need to develop and maintain such mechanisms
for trust building outweigh criticisms that transparency, interlocking
arrangements and political parties also contribute to less effective
and efficient problem solving procedures.
We now turn to consider how the EU can be made
more trustworthy with regard to human rights, and the three forms
of balancing that the EU must secure.
4. THE CHARTER
OF FUNDAMENTAL
RIGHTS OF
THE UNION
Federations and human rights have a long, ambivalent
and contested relationship. Some argue that federations and human
rights are mutually supportive. Federal structures safeguard human
rights at both sub-unit and central levels, and visible human
rights constraints render federations more legitimate and trustworthy.
Others hold that federations threaten human rights and vice versa.
The complex web of centre and sub-unit authority in federations
is more likely to lead to intentional or accidental violations
of human rights. Central authorities might also ignore citizens'
human rights with impunity, while sub-units may enjoy immunity
for mistreatment of their citizens, contrary to human rights requirements.
Sub-units are also more likely to secede when human rights standards
allow them to plead mistreatment from the centre.
The CT would reduce citizens' fear of such abuse,
since the "Charter of Fundamental Rights of the Union"
was to constitute Part II of the CT. This Charter was agreed in
2000, but was not given legal force at the time. It was not intended
to introduce new rights, but rather to recognize, systematize
and give increased visibility to the various existing human rights
obligations. As part of the CT the Charter would provide added
assurance to citizens that their rights would indeed be protected
within the EU. Article I-9 also stated that the Union should accede
to the European Convention for the Protection of Human Rights.
It would make the union accountable to the European Court of Human
Rights, and this would grant Union citizens further assurance.
The CT also revises a mechanism intended to foster human rights
compliance within member states (Art. I-59). The procedure—which
will be kept in the Reformed Treaty—addresses suspicions
that a member state engages in systematic violations of the Union's
values. It includes fact-finding, and now includes dialogue—an
arrangement that allows the target government to give an account
of its policies to the EU. That element of required dialogue was
notoriously absent in the "Reactions against Austria."
The ORT will change the role of the Charter
(provision 9). It will be referred to and given legally binding
value within its specified scope of application, but it will not
be included in the new Treaty. The ORT states that the Charter
does not create new justiciable rights, and that these would especially
not be applicable to the United Kingdom. These statements may
serve different purposes and also perhaps reflect that the ORT
will not add or detract much to what follows from previous Treaty
amendments and the case law of the European Court of Justice,
the European Human Rights Court and national supreme and constitutional
courts.
In conclusion, the Charter on Fundamental Rights
and other human rights provisions of the Reformed Treaty, however
expressed, will provide some assurance to citizens that their
human rights would be protected,—an assurance of great value
for contingent compliers.
5. BALANCE BETWEEN
MEMBER STATES
AND UNION
INSTITUTIONS: SUBSIDIARITY
All federations experience long term trends
toward centralising—and decentralising -decision-making
that can hardly be avoided (Weiler 1999, 318; Dehousse 1994; Tushnet
1996). A crucial issue is how to halt and reverse such drifts,
and maintain a federal rather than a unitary political order.
Safeguards must be in place to reduce the risk of undesired, creeping
centralisation of all competences, and safeguards may also have
to prevent secession by one or more sub-units. Yet such arrangements
must not unduly threaten the effectiveness and efficiency of the
political order.
The CT—and the Reformed Treaty—will
help secure this balance to some extent, and give increased assurance
about it, in at least two ways. Firstly, as mentioned above, the
CT and the ORT increases transparency and clarifies the allocation
of different kinds of competences between the Union and the member
states—exclusive, shared, complementary and co-ordination
(Articles I-12—I-18). These measures may help reduce such
unintended drifts, and thus enhancing trustworthiness. Judging
from the history of federalism, the proper allocation of such
competences will remain a crucial concern. Competing versions
of the Principle of Subsidiarity all address this contested issue
(cf. Follesdal 1998b).
Secondly, it is important to have institutionalised
"centrifugal" forces that prevent the EU from turning
into a unified, "post-national" political order with
no constitutional role for Member States (Nicolaidis 2001; Craig
2003). This concern is even more pressing with the reduced scope
of unanimity, and with it a diminished ability of any one Member
State to prevent or modify European wide policies.
The CT would maintain Member States' influence
in many areas, and grant some new roles. The European Council
would maintain a role in nominating the Commission President for
European Parliament approval, rather than having the President
being elected solely by the Parliament. The CT would also give
several new powers to national parliaments, eg. as laid out in
Protocol 1. They would gain broad access to the Council's legislative
work.
One central set of institutional actors to prevent
centralisation are national parliaments, that will be specifically
mentioned in a new Article (ORT, Annex 1 7). A potentially important
mechanism to prevent creeping centralisation is the role of national
parliaments in monitoring the application of Art. I-11 of the
CT about subsidiarity, confirmed in ORT (11). The Principle of
Subsidiarity requires that
. . . in areas which do not fall within its
exclusive competence, the Union shall act only if and insofar
as the objectives of the proposed action cannot be sufficiently
achieved by the Member States, either at central level or at regional
and local level, but can rather, by reason of the scale or effects
of the proposed action, be better achieved at Union level.
The national parliaments may voice reasoned
objections against draft legislative acts that they think violate
subsidiarity (Protocol 2). If enough parliaments agree, the draft
must be reviewed. This may help protect against some "Competence
creep", though it is worth noting that the mechanism gives
perhaps undue weight to the status quo. Fritz Scharpf has shown
that the decision procedures favour "negative integration"
in the form of removal of obstacles to free trade, and hinder
"positive" integration in the form of new European regulations
(Scharpf 1996, 13). The new subsidiarity mechanism does not affect
this institutionalized preference for market deregulation.
6. BALANCE AMONG
UNION INSTITUTIONS
The second form of balancing concerns how the
Reform Treaty will allocate authority among central Union institutions.
This balance must over time satisfy normative conditions of legitimacy
concerning procedures and outcomes. (Smismans 2004). The CT would
provide that the Union's institutions "shall practise mutual
sincere cooperation" (Art I-19).
Among the important objectives that should be
secured is that no institution should dominate the function of
any other, to provide requisite scope for public deliberation
about the opportunities to cooperate, and to prevent abuse of
public power. "Demos-constraining" elements to prevent
domination and abuse must somehow be squared with the "demos-enabling"
arrangements to ensure that the EU can achieve its legitimate
objectives. Two changes are worth noting in this regard. Firstly,
the Commission President, will be proposed by the European Council
and elected by the European Parliament. This increases the role
of the European Parliament, and may spur much needed political
contestation about Union policies among political parties.
A second quite contested issue is due to France,
who succeeded in removing "undistorted competition"
from the objectives of the EU—objectives that the Commission
traditionally has sought to promote. These two issues intertwine.
We submit that there is hardly a consensus about
the nature of the EU as a political project. Witness the British
protests against France's success in removing "undistorted
competition" from the objectives of the Union. And in the
absence of such a consensus, we may ask with what authority does
the Commission proclaim and pursue these ends of Europe to the
detriment of other concerns? Neither the CT nor the ORT details
the nature of this political project. To be sure, both documents
provide a list of goals. The CT lists the objectives of the Union
(Art. I-3): peace, the well-being of its peoples, freedom, security,
a single market, sustainable development, a social market economy,
aimed at full employment, combating social exclusion, promoting
solidarity and respecting cultural diversity, contributing to
international free and fair trade . . . and so on.
Even after France succeeded in removing the
objective of "undistorted competition" from this list,
the list is unordered and vague: The all-important details, weights
and limits remain obscure. Moreover, they are contested, and are
typically the stuff of political contestation among parties and
ideologies within Member States, in the Council of Ministers and
in the European Parliament. The appropriate weighing might well
differ among Member States, as well as between these sub-units
and the Commission institutions.
Yet Art. I-26(1) lays down that "The European
Commission shall promote the general interest of the Union and
take appropriate initiatives to that end." A central issue
is how the Commission should deal with the disagreements concerning
specification and weighing of these objectives. The increased
role of European Parliament in selecting the Commission President
allows for politicized contestation of precisely these topics,
and that should be welcome. This contestation contributes to make
the Commission more legitimate, and may also foster overarching
loyalty over time.
Still, there is a danger that the Commission
will overstep its mandate. The "general interest of the Union"
is presumably a sub-set of the legitimate interests of individuals—Europeans
and others. Member States may legitimately pursue other objectives
than the common European interest. The "general interest"
of the Union should not always override the policy preferences
of Member States in the way that is likely when the Commission
has monopoly on proposals. This is because citizens' interests
are to be pursued both by Union institutions, and by the institutions
of the Member States. Obviously, citizens' preferences as expressed
by their governments may conflict with proposed Union policies
in several ways. But it is not obvious that the Union's policy
choices should always outweigh those of the Member States, since
the latter may legitimately be pursuing equally urgent interests
of citizens. So member states that refuse to pool sovereignty,
or who vote against Commission proposals, need not be doing this
from "egoistic" motives, nor are they thereby pursuing
national interests in an inappropriate sense. Given the mandate
of the Commission, it is open to doubt that it will keep the proper
objectives of the Member States, and all interests of citizens,
clearly in mind when making its proposals. Thus, its monopoly
risks abuse.
This issue may create quite new conflicts in
the aftermath of a Reform Treaty, given the reduced salience of
unrestrained competition—traditionally an important source
of contestation between the Commission and Member States.
7. BALANCE AMONG
MEMBER STATES:
VOTING WEIGHTS
In many federal political orders the sub-units
vary drastically in population size. In the EU in particular,
member states with small populations enjoy powers beyond what
the principle of "one person one vote" seems to warrant.
This outcome is typical of the bargains small units secure when
consenting to a union where they otherwise are likely to find
themselves in the minority on many decisions. From this perspective,
small states should continue to wield power irrespective of population
size. In later stages, when federations come of age, citizens
of more populous regions often frown upon such agreements (Pinder
1993, 101). To equalize influence of citizens, institutional reform
could increase the powers of the European Parliament, adjusting
the electoral bases of the seats to equalize representation. State
votes in the Council of the European Union could reflect population
size.
This disagreement was the immediate and most
visible cause of the failure of the Draft Constitutional Treaty
at the IGC. It also appeared to be the main issue preventing agreement
to an ORT at the summit in June 2007.
Can over-representation of small and medium
states be defended, consistent with the commitment to equal respect
for all citizens? We submit that one such justification is to
maintain citizens' and politicians' trust in these arrangements
over time.
One line of defense for skewed voting weights
denies that majority rule is normatively appropriate for populations
divided in majorities and minorities along cultural, ethnic or
other cleavages. In such societies individuals face different
risks of ending in the minority on important issues (Barry 1991;
Follesdal 1998a; Lijphart 1999; McKay 2001, 146-47).
In brief, the challenge for institutional designers
is to grant each citizen, across Member States, a fair influence
on the steering wheel, and a fair influence on the brake, of the
EU. Arguments that explicate this "fairness" may draw
the various sorts of individuals' liberties to be secured—non-interference,
non-domination, or enhanced capability sets—or a combination
of these (cf. Dobson 2004), or the normative claim to respect
for expectations created by existing political units (Follesdal
1996). A central consideration is how institutions can promote
the trustworthiness of the authorities in a population deeply
divided on political issues.
One upshot of such arguments is that what is
"proportional" voting weight is not only a mathematical
issue, but one that rests of substantive normative premises. It
would hence be premature to eg criticize Poland for their refusal
to back down from the voting weight agreement of the Treaty of
Nice, to more "equal" or "proportional" distribution
of votes in the CT. Several issues may be normatively important
for citizens: either to have a roughly equal opportunity to be
part of a "winning" coalition sufficient to determine
the direction of various policies in pursuit of one's conception
of the common interest. Or to have a roughly equal opportunity
to be part of a "blocking" coalition, to prevent decisions
regarded as unacceptably harmful to the common interest. Or, yet
again, the normatively legitimate distribution of voting weights
might seek to combine the two, eg to equalize citizens' net "political
opportunity", expressed as the probability of ending up in
a winning coalition minus the probability of ending up in a losing
coalition (Midgaard 1998) The ability to pursue interests may
also be weighed more or less than the ability to block decisions.
These choices of "proportional" voting weight are clearly
not solely the expression of a value-free notion of proportionality.
They require careful reflection on the objectives of democratic
decision-making and institutions' roles in facilitating sufficient
trust, especially among Member States with different historical
experiences of their interaction.
8. CONCLUSION
The Outline of a Reform Treaty strengthens several
federal features of the future European political order. It would
promote important forms of balance, between the Member States
and the Union institutions, among the Union institutions, and
among Member States within the Union institutions. Several of
the changes from the Nice Treaty are much needed improvements
in these regards, see the discussion in Andenas, Mads and Usher,
John (eds) 2003. Among the most significant changes are increased
transparency and simplicity, more visible human rights constraints,
enhanced opportunities for political contestation, and the increased
role of national parliaments.
Some opportunities may be explored even further
in the process of writing the actual treaty. The risk of creeping
centralisation typical of federations may be reduced even more
if national parliaments can appeal an even broader range of Union
applications of the principle of subsidiarity. Critics might argue
that such mechanisms may reduce or slow the Union's ability to
promote the general interests of the Union. Yet I submit that
the effectiveness and efficiency of the European political order
as a whole might not suffer, for at least two reasons. Firstly,
interpreting the European political order as a federal system
entails that the "national interests" can not legitimately
be dismissed as unbecoming a "post-national" political
order. Member State protests and appeals to "national interests"
may be normatively legitimate, and should not always be overruled
by "the general interest". Effectiveness and efficiency
can only be determined on the basis of the complex mixes of legitimate
"European" and "national" interests. Secondly,
an overriding concern must be to not only secure short term effectiveness,
but also reliable effectiveness, which requires trustworthy institutions—even
if such accountability mechanisms are somewhat more time consuming
and complex.
The balance among Member States within Union
institutions remained an extremely contentious normative issue,
expressed in the Summit contestation about voting weights. The
IGC discussions and the summit that agreed to the ORT underscored
that the draft constitutional treaty did not bring closure to
this important topic. One strategy to reach not only consent but
reasoned consensus may be to explore further the claims for voting
weights, be it the concern for protection or for influence—or
a combination of these.
The CT, and hopefully the Reform Treaty, may
strengthen some "self-sustaining" mechanisms that may
over time promote citizens' and authorities' willing support.
These include new opportunities for contestation among political
parties both at the national and Union level, about European level
policies.
These arguments based on comparative federal
studies and the political theory of federalism suggest that the
Reform Treaty would go some distance toward a legitimate and self-enforcing
federal European political order. These changes proposed in the
CT, and in the ORT, would facilitate trust and trustworthiness
among Europeans. Such a revised European political order may also
come to merit such increased trust.
BIBLIOGRAPHY
Andenas, Mads and Gardner, John 2001, "Can
Europe Have a Constitution" (2001) 12 King's College Law
Journal 1.
Andenas, Mads and Jacobs, Francis 1998, European
Community Law in the English Courts, Oxford University Press,
Oxford.
Andenas, Mads and Usher, John (eds) 2003, The
Treaty of Nice and Beyond, Hart Publishing, Oxford.
Barry, Brian, 1991, Is Democracy Special? In:
Brian Barry: Democracy and Power, Oxford University Press,
Oxford, pp 24-60.
Craig, Paul, 2003, What constitution does Europe
need? The house that Giscard built: Constitutional rooms with
a view, The Federal Trust: Constitutionalism Papers 2003 no, 26,
http://www,fedtrust,co,uk/uploads/constitution/26_03,pdf
Dehousse, Renaud, ed., 1994, Europe After
Maastricht: an Ever Closer Union? Munchen: Law Books in Europe,
Dobson, Lynn, 2004, Conceptions of Freedom and
the European Constitution, in: Lynn Dobson and Andreas Follesdal,
eds., Political Theory and the European Constitution, Routledge,
London, pp. 103-21
Filippov, Mikhail, Peter C, Ordeshook, and Olga
Shvetsova, 2004, Designing Federalism: A Theory of Self-Sustainable
Federal Institutions, Cambridge University Press, Cambridge.
Follesdal, Andreas, 1998a, Democracy, Legitimacy
and Majority Rule in the EU, in: Albert Weale and Michael Nentwich,
eds. Political Theory and the European Union: Legitimacy, Constitutional
Choice and Citizenship, Routledge, London, pp. 34-48.
Follesdal, Andreas, 1998b, Subsidiarity, Journal
of Political Philosophy 6 (2): 231-59.
Follesdal, Andreas, 2005, Towards a Stable
Federal Finalité? Forms and Arenas of Institutional and
National Balances in the Constitutional Treaty for Europe, Journal
of European Public Policy—Special Issue: Towards a Federal
Europe? 12 (3): 572-89.
Kohler-Koch, Beate, 2007, "The Organization
of Interest and Democracy in the European Union," in: Beate
Kohler-Koch and Berthold Rittberger, eds., Debating the Democratic
Legitimacy of the European Union, Rowman and Littlefield,
Lanham, pp. 255-71
Lijphart, Arend, 1999, Patterns of Democracy:
Government Forms and Performance in Thirty-Six Countries,
Yale University Press, New Haven.
McKay, David, 2001, Designing Europe—Comparative
Lessons From the Federal Experience, Oxford University Press,
Oxford.
Meehan, Elizabeth, 2001, The Constitution of
Institutions, in: Kalypso Nicolaidis and Robert Howse, eds., The
Federal Vision: Legitimacy and Levels of Governance in the US
and the EU, Oxford University Press, Oxford, pp. 403-12.
Midgaard, Knut, 1998, Consensus, Majority Decisions,
Power and Autonomy: Fragments Related to the European Union, ARENA
Working Paper 1998 no. 10,
Moravcsik, Andrew, 2001, Federalism in the European
Union: Rhetoric and Reality, in: Kalypso Nicolaidis and Robert
Howse, editors, The Federal Vision: Legitimacy and Levels of
Governance in the US and the EU, Oxford University Press,
Oxford, pp. 161-87
Moravcsik, Andrew, 2002, In Defence of the "Democratic
Deficit": Reassessing Legitimacy in the European Union, Journal
of Common Market Studies 40 (4): 603-24.
Nicolaidis, Kalypso, 2001, Conclusion: The Federal
Vision Beyond the Nation State, in: Kalypso Nicolaidis and Robert
Howse, eds., The Federal Vision: Legitimacy and Levels of Governance
in the US and the EU, Oxford University Press, Oxford, pp.
439-81
Pinder, John, 1993, The New European Federalism:
the Idea and the Achievements, in: Michael Burgess and Alain-G,
Gagnon, eds, Comparative Federalism and Federation: Competing
Traditions and Future Directions, Harvester Wheatsheaf, New
York, pp. 45-66,
Scharpf, Fritz W, 1996, "Negative and positive
integration in the political economy of European Welfare states,
in: Gary Marks, Fritz W, Scharpf, Philippe C, Schmitter and Wolfgang
Streeck, eds., Governance in the European Union, Sage,
London, pp. 15-39.
Smismans, Stijn, 2004, The Constitutional Labelling
of "The Democratic Life of the EU": Representative and
Participatory Democracy, in: Lynn Dobson and Andreas Follesdal,
eds., Political Theory and the European Constitution, Routledge,
London, pp. 122-138.
Tushnet, Mark, 1996, Federalism and Liberalism,
Cardozo Journal of International and Comparative Law 4:
329-44,
Weiler, J, H, H, 1996, European Neo-Constitutionalism:
In Search of Foundations for the European Constitutional Order,
in: Richard Bellamy and Dario Castiglione, eds., Constitutionalism
in Transformation: European and Theoretical Perspectives,
Blackwell, Oxford, pp. 105-21.
Weiler, J, H, H, 1999, The Constitution of
Europe, Cambridge University Press, Cambridge.
February 2008
|
