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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007

“Lost in Translation”
Or, how political preferences regarding the Future of Europe
are “translated” into constitutional arrangements
by Dr. Lina Papadopoulou
Lecturer of Constitutional Law
Faculty of Law,
Aristotle University of Thessaloniki, Greece
linapapa@auth.gr

Fere libenter homines id quod volunt credunt.

(People believe what they wish to be true)
Jules Caesar

A. DETERMINING THE ISSUE

The “Treaty Establishing a Constitution for Europe” (henceforth “European Constitutional

Treaty’ or ECT) was signed at the Intergovernmental Conference in Rome on October 29th, 2004,
validated (till April 2007) by 18 out of 27 Member States and rejected in the referendums held in
France and Holland in May 2005. Two years after its rejection, its fate is rather precarious. Which
were the reasons that led to its rejection? Was it a step towards integration or de-integration? Was the
ECT eventually in the “right way” or were those who rejected it justified?
This query might prove to be useful in order to understand who and under which philosophic
or political arguments had a reason to oppose the ECT, but also for an evaluation of proposals
regarding its future: The proposal of reactivating the very same text, which is supported by the
countries who have already validated it; the ‘cherry-picking’ proposal, namely that of selecting and
activating certain ECT arrangements, either without a new treaty, or –to the necessary degree-
through a shorter -and probably not entitled as “Constitutional”- Treaty; the proposal of the Italian
Prime Minister Prodi to delete the third part, or, finally, the view that the ECT is dead and thus an
entirely new and less ambitious text is needed (Britain, the Netherlands).
In order to evaluate the ECT, however, one needs to know where the EU is and should be. It can
hardly be denied however that often the estimation of what the European Union is and should be is
inextricably interrelated with what the evaluator wants it to be. Hence, the question “what is the
European Union?” is often answered not on the basis of sound empirical observation, but of
political and normative preferences. Moreover, on the level of its linguistic expression the transition

Electronic copy available at: http://ssrn.com/abstract=1877750

 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
from Sein to Sollen and vice-versa reveals the inevitable subjectivity involved in the fact that each
interpreter ‘reads’ the phenomena “out there” and ‘translates’ them into empirical or normative terms.
Corresponding to her being in favor of one or another EU vision, one ‘sees’ in the EU what she
wishes to see and confirms her preferences. Thus she often ‘translates’ her political choice into a
normative judgment, covered under the cloak of empirical observation.

The difficulties to evaluate the ECT are multiplied by yet another two processes of
‘translation’: the ‘translation’ of the constitutional terms used –which already have a different
meaning in different national contexts- from the ‘source language’ of the nation state to the target
language of a sui generis entity, namely the European Union, and the translation of the theoretical
model to a specified constitutional settlement. It is not then a coincidence that we, as the participants
in the public political or scientific discourse, often find ourselves lost in the mazes of this multiple
translation: from the ‘sein’ to ‘sollen’ through the ‘wollen’, from the national to the supranational, from
the theoretical model to a normative architecture.
Taken all the above seriously would mean that every evaluation is conditional on the point of
view of the evaluator and is situated in a specific intellectual context. Our present attempt to evaluate
the ECT is situated within the democratic paradigm, that is, we will focus on institutional
arrangements of the Treaty, not being confined in a neo-functional1 mode of legitimization.

B. THEORIES OF DEMOCRATIC LEGITIMACY

1.Europe of the States (intergovernmental model)

Following a state-centric view of democratic legitimacy the source of power and its legitimized
exercise lies in the unit of a ‘people’ or ‘nation’, the uniformity of which is not grounded through a
law order, but exists prior to that.2 According to this view, Europe lacks such a political unit, a
European demos, and that’s why it can neither be a democracy, nor enjoy an autonomous
democratic legitimacy.3

1 See E. HAAS, The Obsolescence of Regional Integration Theory, Berkeley CA: University of California Press 1975, 79-
80: «the public is… concerned with income, price stability, better working conditions, cleaner air, more recreational
facilities … [and] does not greatly care whether these are provided by national government or by Brussels”.
2 Ε.-W. BÖCKENFÖRDE, Staat, Nation, Europa, Frankfurt 1999, 110-115.
3 D. GRIMM, Braucht Europa eine Verfassung?, Juristenzeitung 1995, 581επ. (590)· BÖCKENFÖRDE, Staat, Nation,

Europa, 125-6, Brauchen wir ein erneuertes Grundgesetz?, Heidelberg 1992, 38-39.

Electronic copy available at: http://ssrn.com/abstract=1877750

 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
Due to the above, the only possible source of legitimization for the Union remains the
sovereign states4 and their respective ‘peoples’.5 Internal decision making is subject to national
democratic rules, whereas negotiations between the states is a matter of naked power based on
national interests.6 Any other source of legitimacy leads to anti-democratic results, since democracy is
only possible within a nation state.7

2. The double legitimacy: states and peoples

a. The European demoi-cracy

According to this view,8 the European Union constitutes something more than a
confederation, it constitutes not only a society of states but also a society of peoples, given that the -
organized in states- European peoples are interconnected through the European Parliament (EP).
The element that unites the EU is not a common identity, but the common projects. Consequently
Europe does not need an integrated European public space, but has to respect the different identities
and cultures of the constituent peoples. Power is shared at a horizontal level and the European
“demoi-cracy” has to remain polycentric and to request not the harmonization, but the mutual
recognition of national law orders and legislation and to ensure fair competition among them.

b. Union of states and peoples

This view9 emphasizes the twofold nature of the European Union as a union of both peoples
and states. It does not reject the fact that the European political culture is based on values, but it also
highlights the significance of parity among the states as a result of the democratic principle, which in
its right constitutes a fundamental principle of the primary union law.

4 T. BLAIR, Superpower – not Superstate, London 2000: “Europe is a Europe of free, independent sovereign nations who
choose to come together in pursuit of their own interests and the common good, achieving more together than one
can alone (…) that is the Europe I want: a Europe of nations that in its economic and political strength is that
superpower; but in its constitution and organisation, is not a superstate”.
5 H. LÜBBE, Abschied vom Superstaat, Berlin 1994, 100.
6 Β . A. MORAVCSIK, Preferences and Power in the European Community: A Liberal Intergovernmentalist Approach,

Journal of Common Market Studies 1993, 31:4, 473-524 (481επ).

7 P. KIRCHHOF, The Balance of Powers Between National and European Institutions, European Law Journal 1999,

225επ. (230, 238). Bundesverfassungsgericht 89, 155, 186

8 K. NICOLAÏDES, “We, the peoples of Europe…”, Foreign Affairs 83 (2004), 97επ. (110 ff).
9 D. TSATSOS, European Syn-polity, For a Unification of peoples with strong homelands, Athens 2001, 35 (in Greek).

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
3. The new-republican view

This view of the EU derives from the neo-roman republican tradition and the normative
prescription that decision-making is not to be converted into sovereignty. This objective is achieved
through the “audition of the other side”, that leads not to a consensus but to a compromise. It
suggests ‘mixed’ and ‘balanced’ governance that is mainly ruled by the role played by deliberation10 as
well as by the priority of freedom, as non-dominance, rather than by rights and justice. The
theoreticians of this current of thought stand critically towards liberal normative approaches,
insisting that liberal democracy promises more than what it can offer, as it worsens the triple
(democratic, federal and constitutional) deficit of Europe and furthermore believe that it is not the
Constitution, but the political dialogue that constitutes the means to compose the State.
These principles can be surely translated into different proposals regarding the political
architecture of Europe. Thus within the frame of the intergovernmental-consensus theory there is a
permanent conclusion that the creation of more supranational structures of decision-making does
not contribute to the removal of these deficits, as the voters already feel at distance from the EU
institutions, do not in large numbers participate to the election of the European Parliament and their
identification remains stronger towards their nation-state rather than the EU.11 Under these
conditions the democratic legitimacy can be reinforced through the democratic and the
constitutional potential development of the existent institutional settlement: by removing the deficit
of transparency and deliberation regarding European issues, taking for granted that EU resolutions
exercise a strong influence over national policies and by reinforcing EU legitimacy at a national level.
On the contrary, remaining within the new-republican model, other theoreticians support that
the Union should evolve to a “polyphonic, but not necessarily intergovernmentally consenting
European polity”,12 where political decisions are to be taken by deliberation through an
institutionalized and equal political participation of the members comprising the complex European
demos in the public life of a common political system, of a European res publica.

4. Values as a source of European legitimacy

According to this view a ‘people’, who is nevertheless not characterized by a pre-politic uniformity
but by an attachment to a common value universe bearing a minimalist content, constitutes the

10 R. BELLAMY / D. CASTIGLIONE, Democracy, Sovereignty and the Constitution of the European Union: The
Republican Alternative to Liberalism, in: Z. BANKOWSKI / A. SCOTT (eds.), The European Union and its Order, Oxford
2000, 170-190.
11 R. BELLAMY, The European Constitution is Dead, Long Live European Constitutionalism, Constellations 2/2006,

181ff (182-3). .
12 K. LAVDAS, Political architecture and collectivities in liberal republicanism, in: K. Lavdas / D. Chryssochoou (eds.),

European Integration and Political Theory. The Challenge of Republicanism, Athens 2004, 39ff (86) (in Greek).

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
source of legitimacy. The European people is characterized by the fact that it shares the same values
under a European seal, as for example, the mutual social responsibility which is integrated in the
social state’s ethos in all European societies and is adopted from all social powers or else the human
rights, and especially the ban of discrimination etc. This version is shaded though different colours:

a. Democracy through a Europe of “multiple demoi”

Weiler13 proposes the ‘multiple demoi’ model of variable geometry: this means firstly,
independence of nationality from citizenship and secondly, that citizenship is conceptualised in
civic and political rather than ethno-cultural terms. Weiler recognizes the value of national demoi
as entities which guard the organic-cultural identity and the sense of belongingness, but he
simultaneously invites them to recognize the transnational commitment to common values that
surpass national and ethnic diversity. Nevertheless this identification is not sufficient for Weiler:
although he suggests that the European identity depends on the national one, at the same time he
purports that the European identity constitutes a sine-qua-non component of the national plan.
Moreover, in a series of public life affairs European citizens accept the legitimacy and the
engaging nature of the decisions taken by their non-nationals at European level. This presupposes a
“social contract” between citizens of those states, who are in this way united in a wider political
society. This view, as Weiler emphasizes, preserves both the boundaries (the Self and the Other), but
at the same time it attempts to educate the I to approach the Other. In other words, not only is the
European Demos non-organic but we should not even attempt to make it such. Hence we share
common basic values and that is exactly what makes us accept the subordination of some fields of
our social co-existence in a political community that normatively consists of “Others”.
Regarding the crucial dilemma of whether the psychological bonds (should) precede or follow
the constitutional settlement Weiler abandoned his previous position14 that the sovereignty of multiple
demoi follows psychological bonds, in favour of a more voluntaristic approach15 that brings him
closer to Habermas.

13 J.H.H. WEILER, To Be a European Citizen: Eros and Civilization, in: The Constitution of Europe, Cambridge 1999, 324επ.
(344).
14 J. WEILER / U.HALTERN / F. MAYER, European Democracy and Its Critics – Five Uneasy Pieces, Harvard Jean

Monnet Paper 1995/01: «Individuals must think of themselves in this way before such a demos could have full
legitimate democratic authority. The key for a shift in political boundaries is the sense of feeling that the boundaries
surround one’s own polity».
15 J.H.H. WEILER, A Constitution for Europe ? Some Hard Choices, JCMS 2002, 563-80, (566): «One does not and

cannot wait until the bonds of loyalty, of constitutional demos, of polity are in place as a pre-condition for a
constitutional settlement. The constitutional settlement is a voluntary invitation, self-conscious and autonomous to
create, over time, such a polity, such a demos and such a loyalty».

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
b. Europe as a “civic nation”
According to the view expressed by Habermas, Europe should be built upon the concept of
popular sovereignty: “Such a civic as opposed to ethnic conception of the ‘nation’ reflects both the
historical trajectory of the European nation-states and the fact that democratic citizenship establishes
an abstract, legally mediated solidarity between strangers”.16 However, as the model of democracy
supported by Habermas is most probably the republican, rather than the liberal one, he himself
presupposes a feeling of we (“Wir-gefühl”) and the acceptance of common political values.
Democracy presupposes the socialization of citizens in a common political culture.
Judging from this presupposition it might be concluded that the public power exercised
within the frame of the EU political system can be legitimized from its permanent population, to the
degree that the latter constitutes or accepts a value community. Habermas’ analysis reflects the
social-democratic political reading of the European project, which is to preserve the democratic and
social acquis of the nation-state and through the creation of a supranational political community, the
European Union. It is towards this direction that a European Constitution is called to contribute,
thus one could say that such a Constitution should be adequately ‘comprehensive’ as to the values
that it respects and guarantees.

5. Multilevel governance

The theory of multilevel constitutionalism and governance suggests that we envisage the EU as
a system calibrated into different grades of social integration and different levels of action, which are
originally legitimized by the people and are included in a united constitutional system.17
Consequently, the EU does not constitute an international organization anymore, but a system that
consists of different levels characterized by different degrees of integration. Therefore, an additional
public power level is created through the Union, which (should) draw(s) its legitimacy immediately
from those who are subject to the decisions and the politics of this power.18 As a multilevel
constitutional system, EU directly refers to its citizens for legitimacy purposes, follows the same
discipline of representation as the state -even if it does not constitute a state- and may have a
Constitution, as constitutionalism may be detached from the nation-state.

16 J. HABERMAS, Why Europe needs a Constitution, New Left Review 2001, 5επ. (15-16).
17 I. PERNICE, Multilevel Constitutionalism in the European Union, WHI Paper 5/2002, 7 ( α σε: European Law Review
27 (2002), S. 511-529).
18 I. PERNICE, Rethinking the Methods of Dividing and Controlling the Competencies of the Union, www.ecsanet.org/

post_nice/contributions/pernice.doc.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
6. Towards a federal European state

The precedent theory lies very close but is differentiated from –let us name it so- the
“eurocratic” view, which claims that Europe should be transformed into a federal state, wherein the
source of legitimacy and of the common European sovereignty is the politically united European
people. A European Constitution is conceivable only under this condition, as it would transfer
sovereignty to the European people and establish the European federal state.19
A further argument towards this direction is that only a European state could possibly
influence the international market and contribute to the guarding of citizens’ social rights and thus to
the core of values and confidence of the citizens to the public power, which undergoes a serious
period of crisis. Consequently, the ‘translation’ of concepts such as ‘nation’, ‘Constitution’,
‘democracy’, ‘representation’ and ‘legitimacy’, which we examine in the present paper, is presented in
the specific model in a simpler form than any other –except for the ethnocentric model which denies
any possibility of ‘translating’ these concepts in a context other than the one of each nation-state- as
it is linear and automatic and only presupposes a change of grade.

C. INSTITUTIONS AND POLITICAL LEGITIMACY

It is obvious that all the aforementioned views regarding the source(s) of the community
competence legitimacy ‘are translated’ or may be ‘translated’ into different organizational schemes,
bodies, institutions, and procedures. We could schematically point out the key-characteristics of each
approach as follows: agreements or disagreements by consent and in camera reflect the
intergovernmental model; control by National Parliaments corresponds to a form of ‘demoi-cracy’
and to the ‘Union of people’; the reinforcement of the European Parliament and a more political
character of its decisions lead the Union closer to a model of multilevel governance; an engaging
Charter of Fundamental Rights echoes unity on the basis of common values; a greater number of
common political rights for all European citizens entails the establishment of a common European
‘demos’; and, finally, the supremacy of EU law in relation to the law of the member states exudes the
air of a federal state.
In harmony with the aforementioned, EU institutions might be divided into intergovernmental
(the European Council, the Council of Ministers) and supranational (the European Parliament, the
Commission and the ECJ), despite the fact that their nature is not clear. Thus the European Council
constitutes the par excellence intergovernmental institution since its decisions are prepared by the
diplomatic body (COREPER) and are made unanimously or by consent in camera, since it is not

19 G.F. MANCINI, Europe: The Case for Statehood, European Law Journal 1998, 29επ. (40).

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
controlled at a European level in any procedure (control is only exercised over each leader within the
frame of the national political arena and through the national elections, to the –practically minimal-
degree that the political view that she supported is known) and since its presidency is rotated based
on equal footing among the Member States. It is worth mentioning that this extremely
intergovernmental character becomes relevant when the European Council decides by –two-thirds or
even qualified- majority.
“Europe of peoples” or “demoi-cracy” appears in the weighted vote of the Council of
Ministers, which is equally an intergovernmental institution, since the number of votes reflects, even
in a distorted manner, the relation of national peoples’ size, as the dissenting states accept the
binding character of decisions made in an institution, which consists of ‘Others’. The reinforcement
of the role played by National Parliaments –on the basis of the relevant protocol which is an
appendix of the ECT- equally refers to the legitimization through the national states and is endowed
with the support of those who invoke the parliamentary principle and identify it with the national
state. Those who are inspired by the republican model are also supportive of the legislative
competence –instead of the consulting one- of the Committee of Regions and the Economic and
Social Committee in parallel to the adoption of election patterns in order to strengthen their
representative ability and their political responsibility.
The European Parliament usually falls within the category of the supranational –and hence of a
federal logic- institutions, as its decision-making is by majority and is mainly based upon the political
preferences and supranational incorporations of the European political parties and their
parliamentary groups, but if one comes to think of the way and the political agenda of its election,
the dimension of its via the national states legitimacy will be easily discernible. Thus, it is not
surprising, that its reinforcement is promoted by the federalists, whereas it is not regarded as a means
to strengthen Union legitimacy by the intergovernmentalists, the functionalists or the republicans.
Finally, both the Commission and the European Court –institutions that are par excellence
regarded as supranational as they are destined to promote and uphold the Union interests (art. 211
and 213 par.2a TEC for the Commission and art.220 TEC for the Court)- consist of members
proposed by the national governments by an “one-to-one” representation (one member of the
institution from each member state), which reflects the intergovernmental ratio, including parity
between the states. However, the Commission draws its legitimization from the European
Parliament’s vote of consent (art. 211 TEC), thus borrowing the latter’s double legitimacy basis.
Under this concept one could say that the Commission acquires its triple legitimization by the states
(proposal), the peoples (the Parliament’s consent) and the citizens (functional legitimization, as it
functions on the basis of common European interest and with due respect to fundamental rights).

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007

D. THE ASSESSMENT OF THE CONSTITUTIONAL TREATY

1. Method

We have already discussed (under II) the most prominent models of Union democratic
legitimacy, as well as (briefly under III) the way that the latter are ‘translated’ into institutions and
institutional provisions. What follows is a critical evaluation of the European Constitutional Treaty
(ECT) and an attempt to detect if any one of the aforementioned models is privileged in the Treaty.
In other words, we are to discuss if and to which extent the new institutions that were to enter into
force through the ECT, constitute an institutional ‘translation’ of one or more legitimacy and
integration models. The evaluation will be realized on the basis of the legal description of the
political life, as the latter emerges from the ECT. Political institutions are thus analyzed through their
legal codes and any changes in the typical-legal institutions are claimed to contribute to the change of
the subject’s behaviour. In other words, we set the objective of examining the way that certain key-
issues, which are distinguished because we take them as ‘political integration’ indicators, are dealt in
the Constitutional Treaty, which, if ratified, would constitute the formal constitution of the
European Union, while through our examination we certainly bear in mind the significance of the
Union’s “real constitution”.
Hence we suggest as criteria and indicators of political integration intensity the following: 1)
the ECT rhetoric, 2) its amendment procedure, 3) the formulation criteria of the institutions, their
legitimacy and their decision-making patterns, 4) the competence in the rather sensitive field of the
Common Foreign and Security Policy and 5) the ‘social state’ principle.

2. Political integration criteria

a. The ECT rhetoric

Even though it is quite difficult to reach a safe normative conclusion judging from the rhetoric
and the key-concepts of a legal text, these parameters actually constitute the keystone of a
constitutional text regarding the symbolic function that the latter serves. Consequently, the
declaration of political integration, even if it is not verified in supplementary regulations, constitutes
an indication of political will pointing at this direction.
If we come to examine the EU definition, we see that both in the ECT preamble and in its
first article the “will of the citizens and of the member states” is mentioned, as the latter seem to
constitute the double source of EU legitimization. At a rhetoric level there is an apparent move from
the will of ‘the high contracting parties’, i.e. the states, to a concept including both states and citizens.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
Whether there are or may be in the future normative consequences of this full of symbolisms move
from a single (states) to a double (states and citizens) source of validity remains open. We may
nevertheless claim that the above mentioned declaration may function as a fundamental principle and
offer hermeneutical grounding for the application of other more specific regulations, especially those
regarding the European Parliament, which according to art.20 par.2 and 46 par. 2 ECT represents
the citizens of Europe.
Remaining within the realm of rhetoric and symbols, the consent finally achieved regarding the
reference, not to God, as the more conservative powers wished, but to the “religious” heritage of
Europe, without any reference made to a kind of “acoustic separation in law”20, which was used in
the Preamble of the Charter of Fundamental Rights,21 constitutes yet another political integration
indicator, despite the fact that the specific wording is –justly-considered by some countries –like
France- to be a retrogression from the secular character of political power.
Finally, the move from an economic to a political and social integration is signalled in the art.2
and 3 ECT: The first one, which includes the values whereon the EU is based, echoes the Union
legitimacy on the basis of values. Art.2 ECT comprises a comprehensive list of those values that
render a polity “just” and “fair”, as the latter is registered as a manifestation of the European
collective identity.

b. Drafting, adoption and amendment of the ECT

A more significant political integration criterion –and additionally an evaluator of the fact
whether a constitution has been established through the ECT- lies in the process of drafting and
bringing the ECT into force, as well as in the amendment process that the ECT stipulates.
As far as the ECT drafting procedure is concerned, we have had for the very first time the
involvement of a relatively representative “Convention for the Future of Europe” during the
preparatory phase, which was, until recently, exclusively reigned by states and their governments. The
amendment procedure of the Treaties depicts a pure intergovernmental character, while the
convocation of a representative, although not constituent, Assembly, comprising of representatives
of states (representatives of state leaders and governments), peoples (members of National
Parliaments) and citizens (members of the European Parliament) of the Union, constitutes a clear
step towards the recognition of the Union’s triple legitimization.22 The Public Meeting of the

20 M. DAN-COHEN, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv.L.Rev (1984),
625. “Acoustic Separation” allows the transmission of a message to a specific only audience.
21 In the preamble of the Charter reference is being made in some languages to “spiritual and moral heritage” while in

others to “geistig-religiöses Erbe”.

22 We assert the view that European Union needs a triple legitimacy basis, namely states, peoples and European citizens

(demos).

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
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Convention equally signifies a more politicised and transparent amendment process, compared with
the discussion behind closed doors among professional diplomats of the classic IGC. This is not
undermined by the fact that there were still several issues that were referred either to its secretive
Committee or to the IGC itself.
Another significant evaluating criterion of the ECT lies in amendment procedure, which is
stipulated by the “Constitution” itself. The procedure insists on the unanimous agreement of all the
member states. As Weiler observes,23 unanimity embodying the principle of sovereign equality and
consent is typically a hallmark of internationalism, not constitutionalism. He also remarks that:
amendment by majority is not a ‘mere’ political issue. It is of profound constitutional and social
significance. The willingness to submit yourself to the discipline of majority decision-making, even at
the very high constitutional level, is a sign of a polity and of the intention to associate with ‘others’
without violence. It is an invitation to associate with others with the ties of loyalty and commitment,
which imply subjugation to a newly drawn collective and its will. The material obligation of what is
agreed in a treaty or a constitution can be identical. The basis of acceptance and the relationship are
different: they represent a move to polity.
A second element that would signal the ‘translation’ of the supranational approaches and the
citizens’ upgrading to legitimacy source, which is rhetorically adopted in the ECT, would be the
introduction of a direct democracy procedure at European Union level, e.g. the holding of a Pan-
European referendum about the Constitution’s ratification or amendment, on the basis of the axiom
“one person-one vote”. This is something, as Weiler points out,24 that is pragmatically and
historically possible. In such a hypothetical case the very same process of the Constitution’s
ratification would constitute a first step towards the creation of a ‘European demos’ under a
normative and constitutional concept. Such a referendum would additionally act like a chance and an
impetus for a Pan-European public forum of discussion and for the densification of the European
public sphere. As Habermas observes, the constituent process is by itself a unique means for an over
and beyond the borders communication. It has the potential of a self-fulfilling prophecy. The fact is
that this one and united ‘demos’ would be accompanied for several years to come by the existence
of many national peoples, as in the example of states like Spain, Belgium or Canada where the latter
phenomenon is manifest, but it would not refute the establishment of a European people. Let us not
forget Weiler’ s observation that: “in many instances, constitutional doctrine presupposes the
existence of that which it creates: the demos which is called upon to accept the constitution is
constituted, legally, by that very constitution, and often that act of acceptance is among the first steps
towards a thicker social and political concept of constitutional demos”.

23 J.H.H. WEILER, A Constitution for Europe ? Some Hard Choices, JCMS 2002, 563-80 (565).
24 WEILER, A Constitution for Europe? Some Hard Choices, op.cit., 566.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
Or even, as an element of indirect democracy, the (co)decision of the European Parliament
could be stipulated, since the latter is considered by the ECT to directly represent European citizens.
A thicker and more intense political integration would certainly signify the Parliament’s ability to vote
not only on the “all or nothing” basis that is the sole possibility given by a referendum, but also on a
per article amendment. Such a process would furthermore entail the formation of political alliances
on the basis of substantial convergence and the general conversion of the Union’s consenting model
which lies upon comprehensive negotiations (“nothing is agreed before everything is agreed”), which
are characteristic of the international and not the national political arena.
Nevertheless such a provision was not included in the ECT (art.443 and 444). Art. 443 of the
ECT stipulates the ordinary revision procedure for the future. The revision is to be approved by the
Intergovernmental Conference and should be consequently ratified by the national parliaments of all
member states in accordance with and following the prior tradition. This confirms the
intergovernmental character of the Treaty and justifies those who doubt its transformation from a
‘Treaty’ to a ‘Constitution’. Nevertheless the four following provisions constitute a retrogression of
the pure intergovernmental method towards a more supranational “constitutionalization” of the
revision procedure:
Firstly, not only the Commission and the member state governments, but also the European
Parliament can take the initiative to submit an amendment proposal, while the proposed
amendments are read not only in the European, but also in the national parliaments. The
involvement as well as the reinforced role of both the European and the national parliaments reflect
a degree of a more political revision procedure and constitute a token of a greater democratic control
of the revision’s content.
Secondly, during the preparatory phase the International Conference is now replaced –
formally, that is through a constitutional stipulation- by a representative Convention composed of
representatives of the national parliaments, the heads of states or governments and the European
Parliament. These two changes entail a reinforcement of the component of the “union of peoples
and citizens” as opposed to the currently prevailing “union of states”, a reinforcement which would
be applauded by moderate federalists, while the transposition of the preparatory procedure to the
public sphere increases the possibility of discussion and transparency, which is pursued by
republicans, thus leaving more room for a greater incorporation of value choices than the harsh
intergovernmental bargain behind closed doors.
Thirdly, art.443 (4) ECT,25 how vague it may be, bears a transformative dynamism. No one
knows yet and no one can actually predict if and how this article is going to enter into force.

25 “If, two years after the signature of the treaty amending this Treaty, four fifths of the Member States have ratified it
and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be
referred to the European Council.”

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
Nevertheless, this provision constitutes the only way out from the oppressive intergovernmental
method that involves the approval of each revision by all member states.
Fourthly, there is the possibility of a simplified revision procedure regarding the regulations of
the third part, in order to replace the stipulated Council’s unanimity with a qualified majority. The
simplification lies in the fact that it is not required to call an Intergovernmental Conference or/and
Convention, but the revision is realized by the European Council unanimously and is approved by
majority by the European Parliament, as long as there is no objection raised by a national Parliament.
It is consequently evident that from the bipolar legitimization by states and citizens which is
declared in the first article of the ECT, art.443 only involves the one pole, namely the states, in the
ordinary revision procedure. National Parliaments or/and peoples (through referendums) are then
involved in the same procedures, on the basis of national constitutional stipulations. The latter adds
the dimension of ‘demoi-cracy’, but it is surely not sufficient to justify the reference “on behalf of the
citizens” in the Preamble.
No constitutional or legal doctrine could exclude the adoption of the ECT through a pan-
European referendum, in the same way that no legal doctrine could neither impose, nor ban the
calling of a real constituent ‘Convention’. The fact that such a constituent process was not stipulated
does not prove that it is impossible, but simply that there was no political will to do so. The
preference for a ‘Europe of Home–countries’ and national Demoi prevailed over a Europe of
Citizens, at least in the case of the specific regulation.
What remains a paradox is the marriage between legal federalism – based on the doctrine that
federal law shall have primacy over national law - and ‘constitutional intergovernmentalism’ (with the
internal controversy that this term implicitly declares).

3. Establishment of the Institutions, their political responsibility and their

decision-making process

a. Expansion of the qualified majority

Qualified majority allows for effective decision-making and reflects the supranational model,
the willingness to submit national interests to a majority comprised by ‘Others’. The ECT adds to the
list another thirty different sectors and fields, where veto is abolished, and hence the pure
intergovernmental dimension in decision-making is withdrawn.

b. Reinforcement of the European Parliament

The reinforcement of the European Parliament is usually translated into a reinforcement of the
Union’s supranational character. In the ECT is assigned the role to represent the Union citizens, and

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
not ‘the peoples of the States” anymore (art.190 TEC). Nevertheless, in order to correspond to its
new role as a representative institution of the citizens, it should meet a more active presence of the
European Political Parties, a uniform electoral system and a closer and more direct relation with the
European society of citizens.
Furthermore, a slightly more reinforced character is attributed to the EP regarding the
appointment of the President of the Commission since the elections of the European Parliament are
to be ‘taken into account’ (art. 27 par 1 ECT). Moreover, co-decision in adopting ‘European laws’
and ‘framework laws’ becomes the ordinary legislative procedure (art.34 par.1 ECT). However,
excluding art. 332 ECT26, the autonomous right to take legislative initiatives is not recognized to the
Parliament.

c. The formalisation of the European Council and the President’s election

The European Council is formally introduced in art.21 ECT. Its duty is to define the Union’s
general political direction, namely to take all the political decisions at the highest level without
exercising any legislative competence.
As well known, the rotation system of its Presidency has been severely criticized due to its
defects, which are summoned up as follows: There is a need for greater stability in the formulation,
the formation and the application of community policies. Some countries may not get through with
the work overload that the Presidency involves, due to their lack of experience and administrative
competence or due to an internal political crisis. Contrarily a more permanent President would
provide a greater boost and would gift the European Union with a more intense presence, both
within its borders and abroad.
The Presidency question constituted a subject of turbulence and conflict both in the
Convention and in the Intergovernmental Conference, with the presentation of various proposals,
such as to preserve the current system, to merge the office of the President of the Council with the
one of the President of the Commission –in which case the Commissioners would additionally be
the Presidents of different configurations of the Council. Every form of Presidency leaves the door
for a potential institutional autonomy and reinforcement of the President versus the Council open in
the course of historical and political evolution.
It is telling that those who guard the nation-state Thermopiles attempted to reinforce the role
of the intergovernmental institutions, especially of the European Council, preventing a long

26 Art. 332 ECT: “The European Parliament may, by a majority of its component Members, request the Commission to
submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of
implementing the Constitution. If the Commission does not submit a proposal, it shall inform the European
Parliament of the reasons.”

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
Presidency. On the other side, the advocates of federalism wished to see a reinforced President of
the European Commission, the institution that is regarded to be the par excellence expression of
community rational and European interests, who should be elected by the European Parliament or
even through direct pan-European elections. Hence, the answer that one chooses to give to the
question regarding the President of the European Union actually sums up, even if in a symbolic and
schematic way, her choice concerning the finality of the integrative procedure.
The Convention finally adopted, despite the initial reactions of the smaller member states and
of the Commission, the proposal of French-German aspiration to have a President, elected by the
European Council with qualified majority for a two and a half year term, renewable once (art.22
ECT). The President would guide the European Council and represent the Union abroad. Fears were
expressed that such a Presidency would entail the retrogression of the states’ typical equality, which is
ensured by rotation and lead to the creation of a directing board of the bigger member states which
would opt for the President of their preference. It would moreover lead to diarchy and conflict with
the President of the Commission as well as to reinforcement of the intergovernmental European
Council as opposed to the supranational Commission, the President of which was not gifted with a
corresponding upgrading.
It is quite difficult to say which of the legitimacy models was ‘translated’ into the proposed
Presidency. As stipulated in the ECT, Presidency constitutes –among many others!- a compromise
between different views that pursues to remove functional deficits of the present system by
introducing a full-time and long term President without reducing state sovereignty (it is the European
Council who elects the President), while at the same time by acquiring a sense of autonomy it dyes
the European Council a very vague supranational colour.

d. The Council of Ministers

The most important innovation introduced by the ECT may involve the fact that the Council
of Ministers is to meet in public when exercising its legislative competence. This publicity constitutes
an indispensable presupposition of political and parliamentary control on behalf of the national
Parliaments as well as a sine qua non prerequisite for democracy itself, both at a national and at a
European level. It obviously constitutes another retreat of the intergovernmental practice regarding
the in camera decision making, which enables Ministers to escape political responsibility in the
national political arena, when transferring the burden of legislative regulations to a pretentiously
faceless EU.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
e. Qualified majority
Qualified majority constitutes a key element for an efficient and effective function of a Europe
of 27 Members. All along in European history, a minimum percentage of votes were stipulated for
such kind of decisions, which usually involved 70%, while each state’s votes were weighted in a
degressively proportional way and to a certain degree randomly and arbitrarily as a result of
negotiations. As there have never been stable regulations concerning either the percentage or the
allocation of weighted votes to the member states, each enlargement led to a renegotiation of the
votes cast. This historical precedent was repeated in the Nice IGC, which in preparation for the 2004
enlargement, concluded to a model characterized by a reduced effectiveness in the Union action27: a
triple majority of weighted votes of the member states and the population is required. Translated into
legitimacy projects, weighted votes reflect, as a general scheme, the dimension of national peoples,
since the size of each people is vastly taken into account for the votes cast, and also reinforces the
negotiating position of the bigger countries.
The Convention proposed an exceptionally transparent and simple formula of qualified
majority: majority of Member States representing at least 60% of the Union population. This
threshold corresponds to the legitimacy of the European Union as a “union of states and peoples”
and entails an increased effectiveness of its activity. Decision-making would be facilitated and the
capability of a small number of member states to block the legislative process would be seriously
undermined. Under this concept, the qualified majority model proposed in the draft ECT, could be
regarded as more democratic, logic and just and it would lend greater flexibility and effectiveness to
the Union than the arbitrary Nice weighting of votes.
The Convention proposal did not survive, however, the subsequent IGC. Art. 25 ECT
foresees that “a qualified majority shall be defined as at least 55% of the members of the Council,
comprising at least fifteen of them and representing Member States comprising at least 65% of the
population of the Union”. Additionally, a blocking minority must include at least four member
states, a fact that greatly impedes the possibility of bigger member states to prevent smaller ones
from acting. This modification of the Convention proposal -despite the fact that, compared to the
current Nice arrangement, it reinforces the Union effectiveness and hence the perspective of political
integration- once more reflects the state centric logic of national interests and the fear of the member
states to trust a more easily achievable majority.

27 G. DURAND, Of diplomats and numbers, www.theepc.net, 12.11.2003.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
f. The Commission’s composition and its parliamentary responsibility
Regarding the Commission, the two most important ECT innovations refer to its composition
and its parliamentary responsibility: regarding the first, art. 26, par. 6 stipulates a reduction in the
number of the Commissioners to two thirds of the number of the Member States from 2009 and the
establishment of a system of equal rotation between the member states on the basis of a future
European decision to be adopted unanimously by the European Council. Furthermore for the
President of the Commission to be selected the results of the European Parliament elections are to
be taken into account. Additionally the Commission should be granted the consent of the European
Parliament and it should resign as a body if the Parliament votes on a censure motion and approves
it by a two-thirds majority of the votes cast (art.26, par.8 and art.340 ECT). Thus, the introduction of
some seeds of the parliamentary principle in the European Union is quite manifest, a fact that
signifies a tendency towards a more political character of the European executive. It is though certain
that the evaluation of these provisions greatly depends on their application, i.e. the ‘real’ constitution.
This is evident in the Barroso Commission’s adventure, when a proposed Commissioner was
excluded whereas others changed (or they were asked to change) portfolio following an audition
before the Parliament, as the latter’s majority objected on their political profile.

4. The Common Foreign and Security Policy

The differentiation between ‘high’ and ‘low’ policies constitutes an indicator of lacking density
of political integration. The Common Foreign, Security and Defence Policy is a par excellence
example of a ‘high policy’ due to the national sensitivities it touches upon. The ECT signifies a
minimal move in relation to the TEU in force, which is to be first detected in its rhetoric (art.40, 41
and 294), secondly in the apparent abolition of the EU pillars, and thirdly and most importantly, in
the establishment of the post of a Union Minister for Foreign Affairs.
Furthermore, the Union’s commitment, according to art.3, par.4 ECT, to free and fair trade as
well as to the “strict observance and the development of international law, including respect for the
principles of the United Nations Charter” bears an exceptional, both symbolic and realistic
significance. This provision may be interpreted –as viewed in the context of the Iraq War (in the
beginning of 2003)- as a critic towards the USA’s behaviour and can serve as the Union’s political
mark as well as a specimen of the European citizens’ collective identity.
In the same manner, the ECT announces the future creation of a Union army to be used on
missions internationally and expects from the Member States to contribute to the provision of
military assets. Certain organizations representing civil society have accused the aforementioned
evolution as a sign of EU ‘militarization’. Even if this is so, it nevertheless constitutes a step towards
a firmer and more intense political integration.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
The Union Minister for Foreign Affairs –one of the institutional innovations that is expected
to survive the ECT wreckage- would undertake the responsibility to conduct the Common Foreign
and Security Policy, winning loyalty and confidence on behalf of the Member States and reinforcing
the relevant dialogue between the European and the national Parliaments. This new institution, once
established, has the ambition to reinforce the Union’s international role; on the other side, for that
specific reason, a possible failure in doing so would seriously undermine hopes and expectations for
a credible Union foreign policy. It is obvious that the execution of the aforementioned tasks is
directly dependent on the personal competence and the overall personality of the person assigned to
this office and that the person called to play –in the event of adoption of the ECT or of the specific
regulation- the role of the first Union Minister for Foreign Affairs, will certainly mark this new post.
In any case the innovation under discussion constitutes a further proof of more intense political
integration, despite the fact that the intergovernmental control over the CFSP is retained.

5. Social Europe

As Weiler28 stresses, the choice to include in the ECT stipulations regarding the Union’s social
character constituted a point of conflict and fracture in the Convention, while the degree of guarding
the social character of Europe –what is often called “European social model”- acts as a marker of the
political integration degree for many reasons: firstly, the social principle constitutes a fundamental
principle among (most) European societies and it is an element proudly considered by the Europeans
to differentiate the old continent from other places on the earth, and mainly from the USA.
However, as Weiler reminds us, the Constitutions is not solely a “repository of values” but also a
normative text wherein the immersion of a rule of law signifies that the material to be regulated is
subtracted from common politics and parliamentary conflicts and acquires reinforced legal force and
a strengthened normative character.
On the other hand, the discussions held within the States themselves regarding welfare state’s
transformation as well as the difficulties in preserving the social principle and the social acquis are
multiplied with a result that the latter are not so much undoubted in comparison to one or two
decades ago. Including a relatively rich and beyond the average common denominator social
principle would at first place signify that Europe comes to consent on a substantially hot political
issue, and secondly that it undertakes the responsibility to cope with this constitutional resolution
through the undertaking of more active and interfering policies, given the fact that EU legitimization
is based more than that of a state on effectiveness (consequentialism). Hence the choice for a strong

28 WEILER, A Constitution for Europe? Some Hard Choices, op.cit., 570.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
and unconditional ‘constitutionalization’ of the social principle would reflect a strong will of political
integration.
To this question ECT answers with a greater emphasis on the value of solidarity as opposed to
precedent Treaties, both in art.2 and 3 (The Union’s Values and Objectives) and in the Charter of
Fundamental Rights (second part of the ECT, art.87-98). Beyond these fundamental stipulations,
however, regarding the policy part, art.15 par.3 ECT simply stipulates the ‘coordination’ of the
Member States’ social policy. Thus, this field remains within the supporting activity fields, apart from
those aspects which are defined in the third part of the ECT (art.209-219) and which fall within the
category of concurrent competences. Probably, the most significant among the provisions is the
horizontal social clause found in art. 117 ECT. Moreover the importance of social dialogue is
upgraded, the role of social partners is identified and a new institution is stipulated regarding a
Tripartite Social Summit for Growth and Employment which comprises EU representatives, the
union of employers and the syndicates and which is to contribute to the work of the European
Council on social and economical issues (art.48 ECT). The latter is of great importance as it opens
the agenda on employment issues, but it also reveals a tendency to marginalize the union method in
favour of the political and intergovernmental cooperation, fact that is to be detected in the
reinforced role of the European Council and in the fact that the Tripartite Summit partially
substitutes or overlaps with the fields of the Economic and Social Committee’s activity.
The ECT rhetorical insistence on the social principle is also undermined by the tight margins
of divergence of the “services of general economic interests” from the economic orthodoxy of
competition (art.112), as well as by the insistence on unanimity regarding the social policy vital issues,
such as taxation. This unanimity allows the EU to be inactive and consequently equally enables the
competition among national economies in the name of which social protection is often sacrificed.
Concluding, the ECT treats the principle of ‘social state’ in a rather cautious way, whereas the
coordination method which is selected constitutes an advantageous method for a European model of
peoples and states, for a “demoi-cracy”. Besides, the Union seems to be balancing between the
commitment to the social state values and the real deficit to deliver a wide social protection.
Undoubtedly, and as it happens in the national states, the Union’s performance in these fields is not
so much to be evaluated in the context of constitutional stipulations as, mainly, in the field of
everyday practice.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
E. IN CONCLUSION

1. ECT: The Trojan horse of federalists or the fortress of Eurosceptics?

As we have attempted to substantiate by the precedent analysis, the move from the
intergovernmental model to a Union of peoples or/and citizens, with a supranational direction and a
reinforced legitimization via the ECT is exceptionally slow and hesitant. This initial observation
cannot however annul the gradual but accumulating significant changes, towards the reinforcement
of the European Parliament, as well as a slight retreat of the intergovernmental logic. At the same
time, every step towards the establishment of a European Polity is accompanied by an affirmation
towards the national state that its sovereignty is not endangered. The intergovernmental mode
continues prevailing on the EU political chessboard and the confidence and loyalty of the system’s
main players is still orientated towards the nation-state. The ‘ghost’ of national sovereignty lurks in
every place and activates forces which are sworn to “a tale full of sound and fury” which has been
like that for a long time but which is still able to impede radical changes for the creation of the
European political power.
What is decisive is a continuous give-and-take, which distorts the view of some, well hidden,
steps to supranational unity. The apotheosis of the interim state between state sovereignty and
supranationality goes. We would thus embrace Toni Negri’s declaration that “the Constitution
introduces a new stage towards more federalism, even if the same is not federalist enough”.29

2. The added value of ‘constitutionalization’

If the aforementioned conclusion is valid, if namely the dynamic balance between

intergovernmental and supranational elements, is not radically disturbed, which is the gain in the
whole attempt of the Treaties’ constitutionalization, which has frozen for the time being, but which
continues inspiring its supporters? We believe that the greatest gain lies in the move of the whole
discussion from the issue of “whether” to the issue of “what kind” of Constitution, Polity or political
integration. The centre of gravity of the discussion is irrevocably transposed: the discussion is not
restricted to the ‘translation’ of the terms “Constitution”, “democracy”, “Polity” from the national to
the supranational-European contexts; it refers to a continuously increasing degree to the ‘translation’
from theoretical models and from political views and objectives to a constitutional and institutional
architecture. The specific transposition may be the greatest contribution of the intrusion of the
constitutional dialect into the discussion regarding the European Union.
Besides the inherent controversy in both constitutionalism and intergovernmentalism, the
constitutionalization of a, to a high degree, intergovernmental cooperation can constitute a

29 T. NEGRI, Oui, pour faire disparaître cette merde d’ Etat-nation, Libération 13.05.2005 α σε: www.ouisocialiste.net.

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 Paper presented at the VII World Congress of the International Association of Constitutional Law,
Athens 11-15 June 2007
mechanism serving a double function: firstly it forms a common language, a common framework, in
which –within the scope of following the relevant developments- those who support the state-centric
establishment and legitimization of the European Union are also included. Secondly, the blending of
the two, initially controversial, concepts apparently leads to a distortion of their characteristics, which
results in the opposites poles coming closer, since the one –constitutionalism- functions as a
common conceptual framework, as a ‘forum’, a language, through which it is to be understood and
to which even the intergovernmental cooperation method shall be ‘translated’. The latter event
entails a need to develop arguments on behalf of the intergovernmental approaches, which are to be
oriented towards the peoples, as sources of legitimization of every national power, and not towards
governments. When they are constitutionally ‘translated’ the ethnocentric approaches necessarily opt
for the reinforcement of national parliaments and of internal democracy, and this is yet another gain
in relation to the non-transparent procedure of cooperation at a mere governmental and diplomatic
level. The ‘language’ of constitutionalism imposes the public deliberation and the argumentation on
the basis of values and principles as opposed to the intergovernmental negotiations behind closed
doors. An illustrative example: the Council of Ministers, an intergovernmental institution, mainly
remains the co-legislator but in the case of the ECT this is done in public (art.24 par.6).
Thus intergovernmentalism is ‘translated’ in constitutional terms and owes to dress in
democratic values, being in this way often unfaithful to the realistic and raw conflict of powers and
national interests, to which the ‘lingua franca’ of international politics should unconditionally obey.
The quest on behalf of the europe-phile views –within the scope to adjust to the constitutional
vocabulary and to the rainbow of values- for the ways to reinforce the democratic legitimization of
the EU, through the Parliament, the European political parties or other Pan-European representative
mechanisms, constitutes a respective gain for Democracy and is opposed to the self-complacent
recourse to the sterile and obsolete functional legitimacy.. The ‘translation’ of these two political
poles into the constitutional ‘language’ may not lead to revolutionary changes, but enables politics to
colonize the European domain and opens the door for public deliberation and demands, and hence
for Democracy. At the same time it privileges the objective of safeguarding the constitutional ideals,
of equality, liberty and solidarity. That is, in conclusion, the greatest gain, not only for political
integration…

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