The EU doesn't need a 'proper' constitution
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The EU doesn't need a 'proper' constitution

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this is my presentation for Prof.Nugent course at the College of Europe. ...

this is my presentation for Prof.Nugent course at the College of Europe.
the views expressed are the full responsibility
of the author alone and do not engage the College of Europe.
les éléments contenus dans cette présentation n'engagent que son auteur et ne peuvent en aucune façon etre attribués au College d'Europe

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  • As you can understand from the very first slide I’m here to defend the most sensible position on the question whether the EU needs a proper constitution or it doesn’t need such a thing. I say No as well as this pretty woman does. The EU doesn’t need a proper constitution. That’s my point of view.
  • Ok, here you can see the structure of the presentation. I hope this outline as well as the bigger one you received yesterday, will help you follow the chain of my arguments. But if you have any questions or remarks, please, don’t hesitate to voice them when the presentation is over. So, we will begin with the attempt to define what it is, a “proper” constitution for the EU. Then I’ll try to convince you that the very word “constitution” can’t be used in the context of the united Europe. After that, we will take a look on the goals, nature and the essence of the CT as it was the first attempt to establish some kind of the European constitution. The last but not the least point of the presentation will be dedicated to the comparison between the CT and the Reform treaty and also to some kind of reflection on the step-by-step integration and path dependence .
  • First of all, we need to set a system of axes. Some kind of a coordinate system. That’s why it is essential to distinguish two main meanings of the word “proper”. In first case (you can see it on the screen) while saying “proper” we mean something formal, punctilious. In this connotation constitution appears to be some kind of an ideal model, or, if to use Raz’s vocabulary, thick one. If any constitution wants to become a thick one, it should seek to have all these 7 criteria. I’m sure that all of you have already read about them. Still, I would like to point out one major problem concerning such mode of constitution. I’ve called it a “trap problem”. So, what is this trap? In truth, while trying to draw, to create an ideal model of whatever, we usually address ourselves to the existing examples. We use them to find something common, determinative, useful features and then we summarize all the data. And voila we get the quintessence of the existing practices. This scheme I think is fully applied to the creation of an ideal thick constitution model. The problem is that there is no other entity but state which is ruled by constitution. So we can’t avoid following the example of constitutions in their basic meaning. State constitutions, you know. But the EU is not a state. Can it become a state, some kind of super-federation with the proper STATE constitution? I’m not a federalist to defend such a position. On the opposite I agree with Milward on his point of strong nation-states and etc.
  • So, we need to discover another meaning of the word “proper”. “Proper” in the meaning “peculiar to”. And here there is no contradiction. Any entity needs something which is proper for it, peculiar to it. So does the EU. It needs something which is peculiar to it. You see, I said “something”. I didn’t use the C-word. And it is not a mistake or a slip of the tongue caused by emotions. The main point of my presentation is that the very word constitution is not for the EU. But what is then needed for the EU? Why not a constitution?
  • The main point of this part is that the Union doesn’t need to find its finalite politique which is often linked to the establishment of the European Constitution as well as the European federation. Why? Ok, now I could repeat once again that I’m not a federalist etc. But let’s leave such unexplanatory explanations in the previous slide. The reason for the point, (I mean, the point that the EU doesn’t need to find its finalite politique), is that from the very beginning of the European project the alternative pattern of integration was chosen – step-by-step integration, also called “Monnet method” etc. So, the path was chosen.
  • As you received the bigger outline yesterday, now for me it is not very interesting to lay down my cards. You have already seen them. But still, I want to reemphasize that the perspective, from which I’ve decided to analyze the topic in question, is historical institutionalism. On the screen you can see its main features, in detail you can read Hall’s and Taylor’s “Three new institutionalisms”. Here for our analysis the idea of path dependence is of the utmost importance. How does it work, the path dependence? In accordance with this idea we as actors choose the option, the solution which is advantageous for us at the very moment. Then time passes, situation changes, but the institution created at that time to solve that problem is still alive, and, consequently, limits our choices and our opportunities. As well it influences our preferences and future choices. That means endogenously. Ok, let’s return to the reality. As I’ve already said in the very beginning of the integration process the alternative to the federal-state-building pattern of integration was chosen – step-by-step integration. That means they preferred to go slowly and without a concrete objective rather than to establish the European Federation with the Constitution and this magic finalite politique. And what for do we have to change this pattern today? And can we change it? The answer is that European integration process is an institution in itself, so if it is alive (and it is) it obviously limits our choices. So it is not easy at all to change the pattern and to establish something unrelated to this pattern (I mean, constitution), we are somehow dependant on it. Therewith, there is no use to change it as still there are a lot of steps to be done on this path of step-by-step integration. As Majone points out: “the given size of the service sector [70%] in the modern economy, a common market for goods, such as was more or less achieved with the Single Market Programme, represents only the beginning stage of economic integration”. So, let’s follow the path then.
  • Now I would like to pay your attention to the Constitutional treaty as it was the first attempt of establishing some kind of the European Constitution. In this third section of the presentation I’m going to show you that in fact the CT was some strange result of the mix of the integration pattern influence, on one hand, and persistent unrelated to this pattern choice of European politicians to legitimate the EU by people’s involvement in finding the finalite politique of the EU, on the other. Sounds terrible. But I’ll try. First of all, we should take a look at the goals of the CT. As Andrew Moravcsik points out and I fully agree with him, the main goal of the CT was to make people “understand and appreciate the EU more fully” or less ambitious “to reverse the sagging popularity of the organization”. And it is not difficult to prove these points. Firstly, for that stands the political discourse of the time, started by Fisher’s Humboldt Speech” and repeated regularly by almost all European politicians. The second proof is the very Convention aimed to raise public interest in what was called future of Europe. As you know, it was partly composed of national MPs who should have provided a more reliable link between European citizens and supranational level. So, the very first aim was to tackle the democratic deficit which appeared to become the greatest challenge of the EU. There were some more challenges, Eastern enlargement or the infinite complexity and awkwardness of the EU treaties. But still the discourse was very much about the democratic inclusion to fight the democratic deficit. But does the EU need to tackle this problem? Is there any democratic deficit in the EU?
  • The answer is: there is no need to engage people into European politics as it is boring and not of a salient concern. The EU deals with the rather limited number of nation states’ functions [not more than 20%] which don’t require a high citizens‘ involvement even at the national level, except the question of environmental protection, which is of a serious concern among Europeans. The nature of the EU is that it deals with only that sort of functions. So the democratic control of these functions should be put into practice in accordance with their endogenous logics. The EU is fully legitimized by the “constitutional checks and balances, indirect democratic control via national governments, and the increased powers of the European Parliament” That’s it this logics.
  • But what for then was this unsuccessful exercise in PR launched by European politicians? Someone can argue that the main aim of the Constitutional Treaty was to bring the Union closer to some sort of federation, “to dress up their [would-be federalists] constitutional innovations in democratic garb so as to make them more acceptable to anti-federalists”, as Mark Franklin does. Ok, what were these constitutional innovations? To say in a nutshell, it was an ordinary intergovernmental treaty which essential reforms were only aimed to make “a minor improvement in the structure of the EU governance”. It seems nothing special. And it is. Of course, you can argue that the CT was, for example, to replace all previous treaties or to demolish all the pillars, but all that is the same small steps on the path of integration as well as it was in the Amsterdam treaty, when some policies from the Third pillar were moved to the First one, some kind of washing out of two pillars. Or, if you are still not convinced, that in essence the CT wasn’t the Constitution, we can compare the CT to the seven criteria, elaborated by Raz. Ok, the simplest proof of my words. The CT became one written thing, replacing all previous treaties. But. Has it become less complex and more understandable for EU citizens who are supposed to know, accept and sustain the real Constitution. It can hardly be so, especially with the number of pages exceeding 450 (in English version, with all the protocols). Is it a pretty nice American-style understandable Constitution? Not really. The only real extraordinary thing about the CT is its useless symbolism and inflated constitutional political discourse.
  • Here we’ve come to the point. The essence hasn’t changed. The CT wasn’t as thick as they said it was. It was an “ordinary treaty in the chain” robed in the inflated words, a result of that strange mix of the integration pattern influence, on one hand, and persistent unrelated to this pattern choice of European politicians to legitimate the EU, on the other. So, a candy hasn’t changed (it is still a caramel, not a brand-new chocolate candy, only the wrapper has changed. So, much ado about nothing [special].
  • To show that the CT is in essence situated on the chosen path, that it is still a caramel, let’s follow Sebastian Kurpas comparison between the CT and the Reform treaty. As all of you have already read the article, you won’t be surprised by the fact that the Lisbon treaty is pretty much the same of the CT. The main distinction is that here they don’t use all these useless bombastic words like “constitutional”, “minister of foreign affairs” etc, they just follow the path of amendments and “small-steps” integration. The Reform treaty prepared by the small technocratic Amato group without any sort of the Convention and signed as usual at the IGC is no doubt an ordinary treaty, situated on the path once chosen by nation-states in the 1950s. So was the CT if only unwrapped. There is no use in all this ado concerning democratic engagement, tackling the non-existent democratic deficit if the candy is the same, if it is still a treaty even if constitutional, and if its essence can be easily put in an ordinary intergovernmental treaty of Lisbon. Let’s than follow the reliable unconstitutional path. Today the EU doesn’t need a proper Constitution, whatever proper means.
  • Thank you for your attention. If you have some questions, we are welcomed.
  • Answer to the last question: My point maybe that this may become the critical juncture. “In keeping with this perspective, many historical institutionalists also divide the flow of historical events into periods of continuity punctuated by ‘critical junctures,’ i.e., moments when substantial institutional change takes place thereby creating a ‘branching point’ from which historical development moves onto a new path. The principal problem here, of course, is to explain what precipitates such critical junctures, and, although historical institutionalists generally stress the impact of economic crisis and military conflict, many do not have a welldeveloped response to this question.” (Hall and Taylor)

The EU doesn't need a 'proper' constitution Presentation Transcript

  • 1. Does the EU need a “proper” constitution? Anna Dekalchuk, September, the 30 th
  • 2. Outline 1. What is it, a “proper” constitution for the EU? 2. C-word as a misnomer in the European context 3. “Constitutional” – still an adjective ( “exercise in PR” rather than in state-building ) 4. Unwrapping the CT: Lisbon and path dependence
  • 3. 1. What is it, a “proper” constitution for the EU? Two main meanings of the word “proper” PROPER = FORMAL Constitution as an ideal model , characterized by Raz’s seven criteria: (1) constitutive; (2) stable; (3) superior; (4) written; (5) justiciable; (6) entrenched; (7) common ideology “ Trap problem”: there is no other entity but state which is ruled by constitution
  • 4. 1. What is it, a “proper” constitution for the EU? Two main meanings of the word “proper” PROPER = FORMAL PROPER = PECULIAR TO Constitution as an ideal model , characterized by Raz’s seven criteria: (1) constitutive; (2) stable; (3) superior; (4) written; (5) justiciable; (6) entrenched; (7) common ideology “ Trap problem”: there is no other entity but state which is ruled by constitution The EU needs something which is proper for it, peculiar to it Absence of contradiction: any entity needs something which is proper for it, peculiar to it e.g. a state needs a constitution BUT: Does the EU need a proper constitution? Is “constitution” = something needed for the EU?
  • 5. Step-by-step integration Establishment of the European federation with the Constitution ??? 2. C-word as a misnomer in the European context Back in the end of 1940s The path of integration was chosen Let’s follow the path Finalité politique = something needed
  • 6. 2. C-word as a misnomer in the European context Historical institutionalism Calculus approach Cultural approach RChI HI SI Interdependence of agent and structure, their two-way influence The interests of agents are formed endogenously and exogenously at the same time A view of institutional development that emphasizes path dependence and unintended consequences
  • 7. 3. “Constitutional” – still an adjective ( “exercise in PR” rather than in state-building ) Goals
    • To make people understand and appreciate the EU more fully
    • (less ambitious) to reverse the sagging popularity of the organization
    Challenges
    • Democratic deficit
    • Eastern enlargement
    • Infinite complexity and awkwardness of the EU treaties
  • 8. 3. “Constitutional” – still an adjective ( “exercise in PR” rather than in state-building ) Democratic deficit (follow Moravcsik’s defence)
    • The EU shouldn’t be treated as an utopian ideal model of plebiscitary democracy;
    • the EU is not a super-state;
    • the EU deals with the rather limited number of nation states’ functions;
    • these limited functions don’t require a high citizens‘ involvement even at the national level;
    • the nature of the EU is that it deals with only that sort of functions.
    • The democratic control of these functions should be put into practice in accordance with their endogenous logics
    Is it true? No, it isn’t
  • 9. 3. “Constitutional” – still an adjective ( “exercise in PR” rather than in state-building ) Nature Steps in essence
  • 10. 3. “Constitutional” – still an adjective ( “exercise in PR” rather than in state-building ) Essence ? Unwrapping process Unwrapping process We expected We got
  • 11. 4. Unwrapping the CT: Lisbon and path dependence The Reform treaty = the unwrapped Constitutional treaty
    • Main differences between the LT and the CT (follow S.Kurpas analysis):
    • absence of the symbolic elements compared to the CT;
    • amending treaty , not a replacement of the existing treaty as the CT was.
    Still on the path
  • 12.  
  • 13. What is your definition of a proper constitution for the EU? What do you think of the Lisbon treaty: is it a step back or a step towards the European Constitution? If the Lisbon treaty is failed on the October the 2d, can we still dream of the future European Constitution?