The Lisbon Treaty: De-Constitutionalizing the
European Union?*
CHRISTINE REH
University College London
Abstract
Calls to ratify the Lisbon Treaty by referendum have been countered with arguments
about the Treaty's `non-constitutional' nature. Against this backdrop, this article asks
how much `constitution' is left in the new document. To answer this question, I assert
that little is gained by classifying the Treaty in toto as a `European constitution' or as
the epitome of its failure. Instead, I develop an analytical framework that disaggregates
the concept of constitution into its formal, material and symbolic functions, and
systematically assess how far Lisbon would strengthen (or weaken) Europe's constitutional
quality. The article suggests that, rather than transferring new competences to
Brussels or making a constitutional saut qualitatif, Lisbon moderately bolsters the
Treaties' formal functions; yet, in contrast to the Constitutional Treaty it adds little in
material terms and is a decisive setback symbolically. Calls for ratification by referendum
justified by the reform's extent are therefore ill-founded.
Introduction
Over the last five decades both the debate about and the method of constitutionalizing
the European Union (EU) have taken very different forms
and routes. While post-war Federalists actively propagated a `European
* I would like to thank Harry Bauer, Richard Bellamy, Maria Cahill, Thomas Christiansen, Thorsten Thiel
as well as an anonymous referee for their constructive comments. I am also grateful to the Centre for
European Studies at King's College London for giving me the opportunity of presenting the article, and for
the detailed feedback I received from Dominik Hanf and John Morijn on an earlier version.
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USA
constitution', the six founding states chose to leave constitutional finalité
undefined and opted for functional, step-by-step integration instead. This
initial decision to model the European Communities along the lines of an albeit
special ­ international organization opened the door to legal interpretation
and systemic evolution. The reform method chosen accordingly was
incremental, relying on formal and informal constitutionalization through
Treaty reform, jurisprudence and Community politics. Fifty years after its
foundation, Europe thus still lacked a constitutional blueprint ­ and, maybe
more importantly, had never gone through an explicit constitutional debate.
Only in the face of impending enlargement and a feeling of reform failure
after the 2000 Intergovernmental Conference (IGC) did Europe embark on a
brief phase of formal, explicit constitutionalization. Starting with the 2001
Laeken Declaration, for about half a decade politicians and the press evoked
a `constitutional moment' (Ackerman, 1991), constitutionalization became a
`buzz-word' (Rittberger and Schimmelfennig, 2006), and `[w]hat is interesting
and, indeed, admirable is the speed by which constitutional rhetoric has
been normalized and mainstreamed and how quickly the debate has moved
from "Does Europe need a constitution?" to "What should be in the new
European constitution?" ' (Weiler and Wind, 2003, pp. 1f.).
This article is interested in the speed at which the constitutional pendulum
swung back in the face of the all too familiar developments ­ the setting up
of the Convention on the Future of Europe (CFE) in 2002, agreement on the
Constitutional Treaty (CT) in 2004, ratification in a majority of Member
States and rejection in the 2005 French and Dutch referendums. Indeed, the
Lisbon Treaty (LT), succeeding the CT and signed by EU Heads of State and
Government (HSG) on 13 December 2007, was prepared in an old-style IGC,
painstakingly avoiding any reference in either form or substance to a `European
Philadelphia'. There is widespread consensus that the Lisbon Treaty,
given its eventual ratification in all 27 Member States, would put an end to
both the EU's longest ever reform round and hopes for (and fears of) a
`capital-C Constitution' (Andenas, 2002, p. 103). Yet, once out of the bottle,
the constitutional genie proved difficult to put back in, and echoing the brief
phase of explicit constitutionalization several Member States, most prominently
Ireland and the UK, have asked how much `constitution' is left in the
new text. This and related questions are at the heart of the following discussion.
How can a very vocal coalition in the UK call for ratification by
referendum, arguing that the latest reform is a qualitative leap in constitutional
terms while opponents can claim with equal confidence that the Treaty
is decidedly `non-constitutional'? Why did the Irish government opt for
ratification by referendum while Denmark declared a popular vote to be
unnecessary? Most generally, how could Europe ­ in a brief span of time and
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with limited substantive amendments ­ move from `ordinary' to `constitutional'
legal foundations and back?
In order to address these questions systematically, this article takes a step
back from the political debate in Europe and in Ireland and the UK in
particular. The analysis starts from two assumptions. First, I agree with those
political and legal analysts who see the CT's content largely preserved, but I
argue that looking at form and wording is insufficient when we deal with
constitutional law. Second, against the backdrop of Europe's continuous and
non-teleological constitutionalization, I assert that little is gained by classifying
the Lisbon Treaty in toto as either a `European constitution' or as the
epitome of its failure. Instead, I suggest an analytical framework that disaggregates
the concept of constitution into its formal, material and symbolic
functions (section I). Drawing on this framework, and assuming that (de-)
constitutionalization is likely to remain evolutionary, I analyse how far
Lisbon would strengthen (or weaken) the EU's constitutional quality (sections
II­IV). At an abstract level, this article thus asks what a constitution can
do; analytically, it inquires whether the Lisbon Treaty is likely to do more (or
less) than Europe's current constitutional order does, or than the CT would
have done. I suggest that, rather than transferring new competences to Brussels
or making a constitutional saut qualitatif, the latest reform moderately
bolsters the Treaties' formal functions; yet, in contrast to the CT, Lisbon adds
little in material terms and is a decisive setback symbolically. Calls for
ratification by referendum justified by the reform's extent are therefore
ill-founded.
I. What's in a Constitution? A Framework for Analysis
The subsequent analysis of the Lisbon Treaty is based on two propositions.
First, the constitutionalization of Europe is a continuous, non-teleological
process that has conferred ­ and is conferring ­ a `constitutional status on the
basic legal framework of the European Union' (Snyder, 2003, pp. 62f.). A
similar `constitutional status' has two main dimensions: the juridification of
public authority beyond the nation-state (Scholl, 2006, p. 51), and the transformation
of Europe's legal order from a `relationship binding upon the states
qua states, to an integrated legal order that confers rights and obligations on
private parties, and one in which the controls on the exercise of public power
are similar in nature to those found in nation states' (Craig, 2001, p. 128). A
take on constitutionalization that is `specifically non-teleological and accepts
non-fixity as a way of life' (Shaw, 2003, p. 48) has two repercussions. From
a normative perspective, it implies that a capital-C Constitution is deemed
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either unnecessary or is rejected outright (Weiler, 2003); analytically, it redirects
attention from the question of whether the EU does ­ or does not ­ have
a constitution at a particular point in time, to an interest in whether a formal
or informal reform has strengthened (or challenged) its constitutional quality
on the continuum that is (de-) constitutionalization. This article attempts to
assess the latter. Second, in order to arrive at a similar assessment the article
focuses on a constitution's legal, political and societal functions. The nonexclusive
and non-cumulative criteria suggested in the following are each
derived from one such function, and are grouped into a formal, material and
symbolic category, respectively.1
The analysis starts from Joseph Raz' distinction between `thin'and `thick'
constitutions (1998). In a `thin' sense, any law `that establishes and regulates
the main organs of government, their constitution and their powers' would
qualify as a constitution (Raz, 1998, p. 153; see also King, 2007, p. 3). When
looking at the surface of legal and political discussions about the (non-)
existence of a `European constitution', there seems to be a broad consensus
on such a `thin'constitutional quality. Indeed, if a constitution designates `the
core principles of any given polity' (Eriksen et al., 2004, p. 2), defines and
delimits political power and provides normative guidance, the EU's primary
law clearly qualifies as such. The Treaties set up institutions of government,
define their competences, relationships and decision-making rules, and have
been interpreted and applied `as if they contained the basic constitutional
materials of a new political community' (Eriksen et al., 2004, p. 4). In this
sense, Europe has indeed `had a constitution ever since it was constituted'
(Andenas, 2002, p. 102) and, even more generally, every international organization
with a basic document defining its objectives, competences and
organs of governance is constitutionalized (Röben, 2004).
If the `thin' definition might thus border on the tautological, a constitution's
`thick' features and functions are much more contested and contestable
­ in the domestic domain, but all the more so at the supranational level
(Weiler, 1999b). Raz suggests seven criteria that characterize a `thick' constitution
(1998, pp. 153f.). First, a constitution is constitutive in defining the
different branches of government and the powers of their main organs. Including
both substantive and procedural norms, a constitution thus sets up a state's
political and legal system. Second, a constitution is stable, serving as a
`framework for the political and legal institutions of the country, to be
adjusted and amended from time to time, but basically to preserve [. . .]
1
Similar categorizations have been suggested by Menéndez (2004) and Scholl (2006), who distinguish
between formal, material and normative conceptions of the European Constitution, as well as between
constitutions' instrumental and symbolic functions.
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continuity in the legal and political structure, and the basic principles that
guide its institutions'(Raz, 1998, p. 153). In addition, a constitution is written
and superior ­ enshrined in one or a small number of documents, constitutional
law will break conflicting ordinary law. Fifth, constitutions are justiciable
with processes foreseen `by which the compatibility of rules of law and
of other legal acts with the constitution can be tested, and incompatible rules
or legal acts can be declared inapplicable or invalid' (Raz, 1998, p. 153).
Furthermore, a constitution is usually entrenched, implying that its amendments
have higher thresholds attached than ordinary legislation. Indeed, `by
denominating an issue as "constitutional" we recognize that it is taken off the
agenda of normal politics'(Craig, 2001, p. 126). Finally, constitutions rely on
a common ideology; including principles of government, such as the separation
of powers, fundamental rights and democratic participation. As such, a
constitution serves `not only as a lawyers' law, but as the people's law. Its
main provisions are generally known, command general consent, and are held
to be the (or part of the) common ideology that governs public life in that
country' (Raz, 1998, pp. 153f.). Showing constitutions `as founded on a
contract, an agreement or any other form of social consensus'(Maduro, 2003,
p. 81), this aspect especially goes beyond a `thin' definition.
For the following analysis, Raz' seven criteria are bundled in the three
above-mentioned functional categories (see Table 1). With their emphasis on
codification and constitution in the narrow sense most features belong to the
first, formal category, distinguishing constitutional from ordinary law in form
and function. This holds true for Raz' characterization of constitutions as
written, superior and justiciable; as setting up and curtailing political and
legal order; and as being stable and entrenched (the functions of `codification',
`constitution' and `continuity'). Only Raz' last, very encompassing,
Table 1: Constitutional Functions ­ The Analytical Framework
Category Function Dimensions
Formal Codification Written, superior and justiciable law
Constitution Setting up and defining a political and legal system
Continuity Guaranteeing stability and entrenchment through high
thresholds for change
Material Defining and
institutionalizing
principles of
government
Prominent: separation of powers, fundamental rights,
democratic participation
Symbolic Public recognition
and acceptance
Constitutional provisions are widely known and command
societal consent as a polity's legitimate basis
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criterion of `common ideology' goes beyond a similarly formal function: a
constitution institutionalizes `principles of government' as a normative
benchmark for legitimate governance (Craig, 2001, pp. 127f.; Jachtenfuchs,
2002; Walker, 2003b, pp. 12f.). The substance suggested by Raz ­ separation
of powers, human rights, democratic participation ­ are core constitutional
standards (Menéndez, 2004, pp. 112ff.), each expressing a different conception
of how public power can best be curtailed and of how the treatment of
citizens with `equal concern and respect' can be guaranteed (Bellamy, 2007,
p. 1). Finally, when talking of constitutions as commanding `general consent'
Raz refers to their symbolic function (Scholl, 2006, pp. 36ff.). As `people's
law' constitutions are publicly recognized because they generate shared
meaning, express a society's ordering principles and grant legitimacy
(Menéndez, 2004; Vorländer, 2002). One mechanism to foster public recognition
and acceptance is to open and democratize the constitutional process a
suggestion repeatedly made for the European context (Habermas, 1995,
2004; see also Closa, 2005; Fossum and Menéndez, 2005).
Focusing on a constitution's functions and disaggregating the concept into
a set of non-exclusive, non-cumulative criteria has three advantages. First,
such an approach de-couples the discussion about constitutionalism from the
discourse about statehood ­ a pre-condition for any analysis of Europe's sui
generis order. Second, the framework allows us to contextualize and compare
different substantive and procedural, as well as legal and political dimensions
of constitutionalism, rather than to conclude a clear-cut absence or presence of
an `EU constitution'. Comparison can be either diachronic and horizontal ­ as
is the case of this article ­ or synchronic and vertical, contrasting national and
supranational systems, or allocating constitutional functions to different layers
of Europe's `multi-level constitutionalism' (Pernice, 1999). Third, the supranational
order is a patchwork of constitutional traditions, and the framework
can help us uncover the national origins behind the Treaties (Scholl, 2006).
However, before applying the framework to the Lisbon Treaty in the
following sections two caveats are in order. First, any analyst must keep in
mind that both the inclusion and weighing of different constitutional criteria
will always be normatively contested and that `real-world' constitutions will
display and combine these criteria in different ways. The British uncodified
constitution or the varying roles allowed for judicial review are just two
prominent examples. Similarly, legal and political theorists have been very
outspoken in their rejection of overly legal (or rights-based) variants of
constitutionalism (Bellamy, 2007), and in their emphasis on deliberative
democratic norms (Menéndez, 2004). Such different conceptions and combinations
of constitutional criteria then result in `different interpretations of
the procedure and the agenda of constitution-making' (Menéndez, 2004,
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p. 110) ­ see, for example, the current political debate, where calls for (or
against) ratification by referendum root in the question of whether Lisbon
does (or does not) transform the existing legal order into a `European constitution'.
Second, the three constitutional functions are here suggested as
heuristic categories and as distinct analytical tools. Such a clear-cut analytical
distinction, however, will not conceal the fact that the three functions will
strengthen (or weaken) each other in `real-world' constitutions. Thus, a constitution's
formal and material functions not only require public recognition
to be fully effective (Menéndez, 2004); they can also reinforce a constitution's
symbolic potential. A codified constitutional text, for instance, can
foster public recognition, while particular principles of government often
underlie a constitution's legitimizing role. Section IV discusses this aspect in
more detail.
II. Beyond a `Thin' Constitution: The Treaties' Formal Functions
In its much-quoted and influential Van Gend en Loos judgment, the European
Court of Justice (ECJ) decided that `this Treaty is more than an agreement
which merely creates mutual obligations between the contracting states. [. . .]
The Community constitutes a new legal order [. . .] the subjects of which
comprise not only Member States but also their nationals' (Case 26/62
[1963]). Following this judgment and its principle of `direct effect', Europe's
legal community has widely agreed on the existence of a `thin' supranational
constitution. This section analyses whether the Union's legal and political
order is `thicker' in view of the three formal functions of codification, constitution
and continuity, and discusses whether and how the Lisbon Treaty is
likely to bolster these (see Table 2).
Codification
Europe's primary law ­ current and future ­ fares well in terms of codification,
although it poses a number of distinct challenges. The Treaties are a
body of written legal text, that has been interpreted by European courts as the
Union's constitution. However, with the Treaty Establishing the European
Community (TEC), the Treaty on European Union (TEU), a set of binding
protocols as well as constitutional principles contained in secondary law
it would be inaccurate to speak of one codified document.2
Two further
2
When discussing the constitutional status quo as established by the Nice Treaty, I will refer to the TEU
and the TEC; when referring to the provisions of the Lisbon Treaty, I will speak of the TEU(L) and the
`Treaty on the Functioning of the European Union' (TFEU), as the TEC would be called post-Lisbon. The
Constitutional Treaty would have repealed all other Treaties and is here referred to as CT.
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problems stand in the way of approving Raz' first criterion unconditionally.
First, key constitutional principles have been developed outside the Treaties
and have only been codified step by step ­ the Court's human rights jurisprudence
being a prime example. Second, the Union's constitutional texts are
long and complicated, `lacking in the clarity they would need in order for
them to be understood by some and accepted by all' (Piris, 2000, pp. 2, 41).
Certainly, the Treaties are nowhere close to a succinct and readable statement
of the polity's basic powers and principles. In contrast to Britain's `unwritten
constitution' Europe's Treaties are `over-codified': they contain `more in
Table 2: The Treaties' Formal Functions Post-Lisbon
Function Strengthened Weakened
Codification Vis--vis the Nice status quo
­ overall increase in juridification
Vis--vis the Nice status quo
­ added complexity through
declarations, protocols, opt-outs
­ political challenge of supremacy
­ Charter Protocol explicitly shields
British and Polish laws from
justiciability
Vis--vis the Constitutional Treaty
­ Treaties amended, not repealed
Constitution Vis--vis the Nice status quo
­ (inconsistent) bundling of
constitutive principles in the
TEU(L)'s first Titles
­ vertical distribution of powers
clarified: principle of conferral,
Art. 3 TEU(L) and TFEU Title
on competences
­ abolition of pillar structure and
creation of single legal
personality (Art. 1 TEU (L))
Vis--vis the Constitutional Treaty
­ no systematic division of
constitutional and policy provisions
as in the CT's Parts I, II and III
Continuity Vis--vis the Nice status quo
­ continued `super-entrenchment'
but simplified revision procedure
(Art. 48 TEU (L))
Vis--vis the Nice status quo
­ increased use of opt-outs and
facilitation of enhanced co-operation
(Title IV TEU (L))
­ inbuilt future reform and passarelle
clauses (Art. 9 TEU (L))
­ potential territorial instability
through the right to secession (Art.
49 TEU (L))
Overall: juridification increased and constitutive function strengthened, but no step towards a
single, superior, justiciable document and discontinuity threat through the right to secession
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some ways and less in others than national constitutions' (Grimm, 1995, p.
289), and their ambiguous language shows that they have been negotiated
rather than `intentionally designed' (Menéndez, 2004, p. 110).
Although the Lisbon Treaty stipulates that `[t]he Union shall replace and
succeed the European Community' (Art. 1 TEU (L)), ambiguity and complexity
will be aggravated rather than eased in the future. The CT would have
repealed the existing Treaties and replaced them with one ­ if long and
detailed ­ document in four parts: a first part on objectives, competences and
institutions was followed by the Charter of Fundamental Rights as well as
sections on The Policies and Functioning of the Union and General and Final
Provisions. For the IGC 2007, HSG decided that this `constitutional concept,
which consisted in repealing all existing Treaties' was to be `abandoned'
(European Council, 2007a). Indeed, the LT's function is to amend, not to
repeal, and it adds rather than reduces complexity through further declarations,
opt-outs and protocols. Albeit bundling constitutional principles in Title
I TEU(L), it does not do so consistently: the vertical distribution of competences
or budgetary principles is part of the detailed TFEU. More will be
codified in the LT but codification does not move Europe's legal order any
closer to one constitutional text.
Turning to the second dimension, since the ECJ's 1964 Costa v. ENEL
judgment, the superiority ­ or supremacy ­ of Community law has become an
established legal principle (Piris, 2000, p. 8) as well as a pre-condition for
citizens' equality under Community law (Menéndez, 2004, p. 117). As such,
supremacy ­ together with direct effect ­ is at the heart of constitutionalization:
the Treaties do not only create relationships between states qua states (as
does international law), but confer rights and obligations on third parties and
curb public power (as do constitutions). Yet, even if the Community's legal
order has moved beyond international law, one can doubt whether it is fully
superior. There may be a general tendency for national courts to comply, but
`there is still a challenge to the absolute supremacy of EU law on the part of
several national high courts. This is visible either in the description that
national constitutionalism's makes of itself or in the dependence of EU law
for effectiveness upon national law and national courts'(Maduro, 2003, p. 97;
see also Schimmelfennig, 2006). Indeed, the EU relies upon national authorities
to apply and implement its law ­ and thus, ultimately, to ensure its very
supremacy (Piris, 2000, p. 17).
The debate about ­ and the compromise on ­ the principle of supremacy
during Europe's latest reform round has brought this hitherto legal issue into
the public­political domain.At first glance, the LT `clearly confirms the status
quo, that is the well-established case-law of the European Court of Justice'
(Kurpas, 2007, pp. 3IIf.). Yet, in contrast to the CT, which would have
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explicitly enshrined supremacy (Art. I-6), reacting to political opposition
from the UK government and the Dutch voters Lisbon moved the principle to
a Declaration Concerning Primacy. Legal scholars have doubted whether
constitutional conflict would have been eased with the CT (Kumm, 2005).
Yet, the decision by HSG not to codify supremacy in the Treaty's main body,
but to move the principle to a non-binding declaration, sends a clear anticonstitutional
message: not only `thinning' the Lisbon text in comparison
with the CT such political contestation risks undermining supremacy as a
historically grown principle and legal practice.
The picture regarding justiciability is similarly mixed. Although the Union
disposes of a well-developed system of judicial review, the Treaties are not
unconditionally justiciable. Constitutional conflict occurs and the question of
`who decides who decides' yields different answers from national and Community
lawyers (Maduro, 2003, p. 95). Furthermore, the LT entails provisions
that explicitly protect national laws from judicial review by the ECJ. The
legally binding Protocol on the Application of the Charter of Fundamental
Rights, for instance, denies the ECJ as well as national courts the power `to
find that the laws, regulations and administrative provisions, practices or
action of Poland or of the United Kingdom are inconsistent with the fundamental
rights, freedoms and principles that it reaffirms'. Similarly, even after
2014 ­ when measures on justice and home affairs (JHA) will fall under the
ECJ's jurisdiction ­ the UK will be able to decide on a case-by-case basis
whether to accept the Court's rulings (Brady and Barysch, 2007).
Constitution
The Union's primary law constitutes the Community, sets its objectives,
establishes its institutions, assigns their powers and orders their procedures
(Grimm, 1995, p. 289). The Treaties thus closely fit Raz' criterion of `constitution'
­ a fit likely to become even closer post-Lisbon.
Most generally, as mentioned above, the TEU(L)'s first Titles bundle most
­ if not all ­ of the Union's constitutive provisions. They detail values and
objectives (Title I), democratic principles and institutions (Titles II and III),
enhanced co-operation and Europe's global role (Titles IV and V) as well as
amendment and secession (Title VI). Yet, key constitutional questions ­ such
as the specification of the Union's competences ­ are found among the
detailed policy provisions of the TFEU.
At a horizontal level, the TEU(L) amends Europe's institutions and their
powers ­ granting the European Council institutional status (Art. 9); strengthening
the parliamentary component in the election of the Commission
President (Art. 9a and d); reducing the College of Commissioners (Art. 9d);
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establishing a permanent President of the European Council (Art. 9b);
merging the functions of the High Representative and the Commissioner for
External Relations (Art. 9e); and changing the Council's voting system (Art.
9c). Perhaps most significant in constitutional terms, the LT abolishes the
pillar structure, thus setting up a single polity with legal personality (Art. 46a).
Concerning the vertical division of powers as well as principles of governance,
the new Title I on General Provisions complements subsidiarity and
proportionality with the `principle of conferral', designed to limit the Union's
competences (Art. 3 TEU (L)). Albeit still short of a catalogue of competences,
a number of new provisions divide vertical powers more clearly. Next
to the principle of conferral and the TFEU's Title I on Categories and Areas
of Union Competences, Art. 3a TEU(L), for instance, stipulates that the EU
shall respect `national identities' as well as `essential State functions'. In a
similar vein, the Protocol on the Exercise of Shared Competences curtails the
supranational level: `when the Union has taken action in a certain area, the
scope of this exercise of competence only covers those elements governed by
the Union act in question and therefore does not cover the whole area'. The
new Treaty also contains the clearest expression yet of the Union's `lack of
independent sovereignty' (Piris, 2000, p. 21), stating in Art. 48 TEU(L) that
an IGC can also cut back EU powers.
In sum, the Lisbon reforms bolster the Treaties' constitutive function of
setting up and curtailing political and legal power ­ if in a less systematic way
than the CT would have done. At the horizontal level, the new Treaty further
defines the organs of government and their powers; at the vertical level, it
adds unprecedented clarity, geared at curbing the supranational level.
Continuity
Turning to the final formal criterion ­ continuity through entrenchment and
stability ­ the picture is equally mixed. Recalling Raz, entrenchment refers to
the particularly high thresholds for constitutional change. Requiring `dual
unanimity' to be changed, the European Treaties have traditionally been
`super-entrenched'. According to Art. 48 TEU (and TEU (L)), HSG need to
agree on changes unanimously in an IGC, and all Member States need to
ratify the novel provisions according to national constitutional procedures.
The Convention had floated the idea of a `super-qualified' majority in the
Council of Ministers to amend policy provisions (Kurpas, 2007, p. 9I), and
legal scholars have linked constitutional quality to the possibility of amendment
by majority (Besselink, 2008, p. 6). The LT, however, does not fundamentally
change the status quo: its `simplified revision procedure', foreseen
next to IGCs to amend Part III TFEU on internal policies, still requires
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unanimity in the European Council and `shall not increase the competences
conferred on the Union' (Art. 48 TEU (L)).
If one defines a constitutional issue as entrenched because it has been
taken off the normal political agenda, the supranational case becomes even
more complex. Indeed, the `proper division of power and allocation of functions
between the institutions is itself normatively contestable, which has
implications for the stability of any European Constitution' (Craig, 2001,
p. 139). This is particularly true as the most controversial ­ and hence
unstable ­ issues have been the ones at the core of Europe's legal­political
order: the division of powers between the European institutions, the balance
of power among EU Member States, the vertical distribution of competences
and decision-rules.
Turning from entrenchment to stability, the Treaties have been stable to the
extent that they were concluded for unlimited duration (with the exception of
the ECSC that expired in 2002), and (originally) without the right to secession.
At the same time, Europe's legal order has been inherently unstable.
Formally aiming at functional economic integration, it has been a `stepping
stone [. . .] [and a] means to reach wider and explicitly political ends'
(Menéndez, 2004, p. 117). Since the early 1970s the scope of Community
competences has gradually been expanded ­ mainly through the Court's
teleological interpretation and doctrine of `implied powers' as well as a
generous use ofArt. 308 TEC, allowing the extension of competences without
recourse to formal reform (Weiler, 1999a, p. 23). With an additional six major
IGCs conducted between 1990 and 2007 alone, the supranational order has
indeed been in constant flux and evolution.3
The Lisbon Treaty is unlikely to provide more lasting stability ­ although
reform fatigue may well prevent a new IGC from being convened any time
soon, and although the HSG `expect no change in the foreseeable future'
(European Council, 2007b). The LT not only preserves Art. 308 TEC, but, by
merging the three pillars, theoretically allows its use beyond former Community
issues (Kurpas, 2007, p. 2I). Lisbon also contains time lines for future
reforms ­ the new double majority in the Council or the downsizing of the
Commission will both enter into force in 2014 (Art. 9c and d TEU (L)) ­ and
allows the European Council to move decision-making from unanimity to
qualified majority where the TFEU or Title IV TEU(L) are concerned (Art. 48
TEU (L)). Informal constitutionalization between IGCs is thus likely to
3
Some scholars have considered instability as a normative and pragmatic necessity. A stable constitution
may guarantee continuity and, as such, facilitate recognition, the argument runs, but the Treaties as
instances of constitutionalization, rather than a fixed constitution, keep substantive and territorial boundaries
open, cultivate desirable dialogue and foster constitutional tolerance through the constant recognition
of difference (Weiler, 2003).
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continue. Finally, beyond the list of issue-specific opt-outs, the Treaty, for the
first time in EU history, formalizes a Member State's right to withdraw from
the Union (Art. 49 TEU (L)). One might argue that a similar provision is no
more than a sign of further juridification or legal clarification. Nevertheless,
an institutionalized right to secession introduces territorial flexibility unimaginable
in any `thick' constitution and strongly smacks of international law.
III. The Material Constitution: Changing Principles of Government
When judging on the Treaties' supremacy, the ECJ affirmed that certain
substantive policy contents are prohibited or mandated by Community law.
These policy contents, in turn, became `the benchmark of constitutionality'
(Menéndez, 2004, p. 117), and point to the Treaties' second, material function.
This function is closely related to the above-discussed criterion of
`constitution', but whereas the former is `neutral in moral and political terms'
(King, 2007, p. 3), the material constitution entails substantive principles of
constitutional government, and thus fills form with content.
The discussion of a constitution's formal functions can be translated
relatively easily to the supranational context; discussing the material functions
poses numerous challenges. In particular, scholars have debated whether
the Treaties should have a material role at all, and whether this role should
remain predominantly economic. Closely related are the questions of whether
standards devised for nation states can ­ and should ­ be applied to European
governance, and whether a material constitution is at all possible without
statehood.4
The two arguments are closely linked: if the Union merely
requires an economic constitution for `market citizens' (Everson, 1995), any
aspiration for rights protection beyond the four freedoms and for fully fledged
democratic participation is neither necessary nor desirable (Bellamy, 2003).
This article argues that the CT's scope and remit necessitates an analysis
of how much material constitution ­ or normative standard ­ is left in its
successor document. When discussing a constitution's `thick' functions,
section I identified three material standards in particular: the separation of
powers, the protection of fundamental rights and democratic participation.
The following argues that on all three standards the domestic­supranational
gap has widened rather than narrowed post-Lisbon (see Table 3).
4
The article's scope does not allow me to engage with any of these arguments in detail. See Majone (1998)
and Moravcsik (2002) for a functional-economic take on the Union and the normative implications of such
a view; Weiler (1999b) for the problem of translation and the question of fundamental rights protection;
Shaw (1999) and Walker (2003a) for post-national constitutionalism; and Grimm (1995) and Mancini
(1998) for two different approaches to statehood, sovereignty and constitutionalism. Ladeur (2008) gives
the most recent overview of the debate.
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Separation of Powers
As argued above, Europe's legal and political order goes beyond the usual
scope of international law ­ especially when accounting for the directly
elected Parliament, the effective system of judicial review and the possibility
of taking decisions by qualified majority. Yet, while most national constitutions
subscribe to (at least some) separation of powers, the EU defies this
standard. Rather than separated, executive and legislative powers are interlocking
and shared between the Commission, the Council of Ministers and
the European Parliament (EP):
Institutional balance between the three is the guiding principle of the EC. It
is this, rather than some model of separation of powers, which accurately
captures the reality of Community decision-making. The precise degree of
power which each of these institutions possesses has evolved since the
Community's inception. It continues to do so. (Craig, 2001, p. 140)
The LT indeed confirms rather than breaks with this tradition of interlocked
competences ­ a tradition that decreases transparency, makes it difficult to
assign responsibility and thus challenges accountability. As demonstrated in
section II, the new Treaty further defines the Union's institutions and powers;
it also divides vertical competences more clearly, if at the expense of the
Table 3: The Treaties' Material Functions Post-Lisbon
Principle Strengthened Weakened
Separation
of Powers
Vis--vis the Nice status quo
­ overall, interlocking rather than
separated powers preserved
­ potential horizontal competence
conflict increases the difficulty of
pinpointing executive power and
of allocating responsibility
Fundamental
Rights
Vis--vis the Nice status quo
­ Charter recognized and given
legal status in Art. 6 TEU(L)
Vis--vis the Nice status quo
­ Polish and British opt-out
challenges the equality of
European citizens before the law
Democratic
Participation
Vis--vis the Nice status quo
­ Title II TEU(L) Provisions on
Democratic Principles
­ citizens' initiative and greater
involvement of national
parliaments (Art. 8 TEU (L))
Vis--vis the Nice status quo
­ simplified revision procedure
further empowers states not
citizens as pouvoir constituant
(Art. 48 TEU (L))
Overall: differential legal protection undermines the material gain of recognizing the
Charter, and the domestic-territorial dimension of democratic participation is strengthened
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supranational level. At the same time, the LT has new competence conflicts
inbuilt, in particular when it comes to executive powers as well as executivelegislative
relations. On the one hand, it further parliamentarizes the system,
giving the EP budgetary powers and the right to `elect the President of the
Commission' (Art. 9a and d TEU (L)). On the other hand, the LT adds
presidential elements by creating yet another executive player: a permanent
President of the European Council, elected by the HSG (Art. 9b TEU (L)).
Feeding on two different sources of legitimacy ­ parliamentary and intergovernmental
­ the Presidents of the Commission and the European Council may
well compete about external representation and long-term agenda-setting
(Hofmann and Wessels, 2008, p. 11). Post-Lisbon it will thus be even more
difficult to pinpoint executive power and to assign responsibility accordingly.
Fundamental Rights
The separation of powers is one core principle of constitutionalism; fundamental
rights protection is another. Both are prominent devices for curbing
public power and guaranteeing citizens a zone of non-interference. In Europe,
this zone was originally economic, with the `four freedoms' of goods,
persons, services and capital at the heart of the early material constitution
(Arts. 23ff., 39ff., 49ff. and 56ff. TEC). The Treaties contained few further
rights references, such as non-discrimination on the basis of nationality and
equal pay for equal work, both ensuring economic equality. The rationale
seemed clear: as long as the Treaties were functionally restricted, a more
comprehensive human rights protection seemed unnecessary. Only when the
Community started to take binding decisions beyond the purely economic,
and when the Court established direct effect and supremacy, did it become
`legally and politically imperative that a way be found to vindicate fundamental
rights at the Community level' (Weiler, 1999b, p. 107).
The story of how fundamental rights, next to economic freedoms, have
become constitutionalized ­ reaching from the Court's jurisprudence in cases
like Stauder (1969), Internationale Handelsgesellschaft (1970) or Hauer
(1979) to the incorporation of human rights in the Maastricht Treaty ­ is
well-known and has been told elsewhere (Stein, 1981; Weiler, 1999b). PostMaastricht,
the EU was thus normatively `thicker' than the previous legal
regime, but it still lacked what some consider a core feature of constitutionalism:
a catalogue of fundamental rights (Grimm, 1995, p. 287). It is thus
unsurprising that the launch of a European `Bill of Rights' was part (or even
the trigger) of the EU's brief phase of explicit constitutionalization. In June
1999, the European Council set up the `Charter Convention' which prepared
a fundamental rights catalogue, building on common constitutional traditions,
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on the European Convention on Human Rights (ECHR) and on ECJ jurisprudence
(Dutheil de la Rochre, 2004). In the 2000 IGC, HSG decided
against incorporating the Charter into the Treaty, and some of the fiercest
political debates in the Convention concerned the Charter's status ­ viewed as
the welcome nucleus of a European Constitution by some, but as a source of
legal confusion or as an encroachment on national sovereignty by others.
The CT would have incorporated the Charter as its Title II; the TEU(L)
recognizes the `rights, freedoms and principles set out in the Charter' in Art.
6 and gives it `the same legal value as the Treaties'. Albeit less visible than the
CT's Title II, this recognition could be seen as a leap towards a `thicker'
material constitution. Yet, I would not only caution against such a view but
argue that the qualifications added to the Lisbon Treaty in order to make the
Charter more palatable for the UK and Poland in particular, undermine rather
than strengthen the Treaties' material function. First, the Charter adds little to
Europe's rights status quo: the Protocol on the Application of the Charter
explicitly states that the document `reaffirms' existing rights, freedoms and
principles and makes them `more visible', but that it `does not create new
rights'. More importantly, however, Poland and the UK negotiated a de facto
opt-out from the Charter. This opt-out undermines a core principle of national
constitutionalism: the equality of citizens before the law. Indeed, insulating
the two countries from Charter-based judicial review reduces their citizens'
protection compared with those in other EU Member States. Diverging from
the principle of Member States' equal rights and duties as well as from the
unity of EU law, the Charter Protocol also challenges established supranational
doctrine (Hofmann and Wessels, 2008, p. 9). The British and Irish
intricate system of opt-outs from and opt-ins into JHA ­ and the Court's
jurisdiction ­ aggravates citizens' differential legal protection along territorial
lines. The institutionalized human rights opt-out, falling behind core principles
of constitutionalism, national or supranational, thus offsets any `material
gain' through the Charter's recognition.
Democratic Participation
The previous section mainly talked about rights as `liberty rights', guaranteeing
a zone of non-interference from public power in the field of broadening
Community competences. Yet, this `negative' dimension is but one aspect of
fundamental rights, the flipside being political rights of participation, communication
and collective will-formation ­ in short, of democratic inclusion
(Habermas, 2001, p. 770; most prominently Bellamy, 2007). Again, both the
EP's empowerment and the development of European citizenship have been
extensively discussed elsewhere (Bellamy and Warleigh, 2001; Rittberger,
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2005). At the same time, scholars have questioned whether the Treaties can
genuinely turn `subjects' into `citizens' ­ a key function of national constitutions.
Indeed, while the doctrines of direct effect and supremacy as well
as the Union's institutional set-up have distinguished Europe's legal order
from international law, as instruments of collective self-organization and
self-government the Treaties are wanting (Preuß, 1999, p. 163). First,
European citizenship is only derived from national citizenship; second,
despite participation and (very limited) scrutiny rights at the supranational
level, citizens' main democratic anchor remains the nation state; and, third,
states, not citizens, are the pouvoir constitutant of Europe's primary law.
The LT's citizenship provisions (Art. 8 TEU (L)) do not change the first
aspect, and the principle of conferral, coupled with Art. 48 TEU(L), underlines
the third: albeit institutionalizing the Convention method, the Treaties
are still reformed through unanimous consent by HSG, combined with decentralized
national ratification. The simplified revision procedure further
strengthens the governments' role at the expense of Europe's citizens. Finally,
the LT cements the nation-state as democratic anchor ­ a move certainly
welcomed by those scholars who question the possibility of democracy
without statehood, or who stress the functionally limited role of the supranational
polity. Indeed, Lisbon entails two genuine democratic innovations: the
citizens' initiative (Art. 8b TEU (L)), and the greater role given to national
parliaments (Art. 8c TEU (L)). Both provisions are based on established
territorial principles of democracy: the latter directly, the former indirectly,
stipulating that the `one million citizens' who can call upon the Commission
to propose a law must be nationals of `a significant number of Member
States'. This finding resonates with the conclusions drawn in section II,
namely that Lisbon bolsters the Treaties' constitutive role and clarifies the
division of competences between the national and the supranational level but
that it achieves such clarity by decidedly curtailing the European arena. In
a similar vein, the latest reform round establishes new norms of democratic
participation but anchors them explicitly in the domestic democratic arena.
IV. But No `Thick' Constitution Yet: The Symbolic Setback
When categorizing Raz' seven constitutional criteria, a constitution's symbolic
function was defined as the `thickest'. Enabling public recognition and
societal consent ­ in short, legitimacy ­ this function turns a constitution from
`lawyers' law' into `people's law'. So far, the article has painted a mixed
picture of the Treaties' changing constitutional quality, with their formal and
material functions partially resembling and partially defying constitutional
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standards.Yet, post-Lisbon especially a turn from `black letter'content to `the
social' raises scepticism. Indeed, the Treaties' potential to bolster recognition
and to deepen consent has not been enhanced but challenged by Europe's
brief phase of explicit constitutionalization. Symbolically, Lisbon is not only
a decisive step behind the CT; the choice of an overtly constitutional reform
discourse and method, followed by the ratification fiasco in France and the
Netherlands, by the subsequent `re-de-constitutionalization' of both language
and process and, finally, by the Irish `no' in June 2008 have lastingly undermined
the Treaties' symbolic value. This conclusion is by no means a verdict
against the European polity's legitimacy (potential); the following merely
argues that in the foreseeable future public recognition and societal consent
are unlikely to stem from a symbolic constitution (see Table 4).
Public Recognition and Societal Consent
Legal scholars and political theorists have long argued that a constitution does
not only draw value from its form and substance, but also from the social
practice of recognition (Menéndez, 2004). Indeed, constitutions `are meant to
provide a framework for the public life of a country, giving it direction and
shape. For this to be achieved, widespread knowledge of the Constitution
has to be secured. This requires knowledge not only of the text but of its
significance' (Raz, 1998, p. 175). Such recognition need not be as thick as
Habermas' `constitutional patriotism', but it still requires a practice of referring
to `the constitution'as well as an awareness and acceptance of its genesis
and content. In short, a constitution is to be known, accepted and sustained.
Table 4: The Treaties' Symbolic Functions Post-Lisbon
Function Strengthened Weakened
Public
recognition
and societal
consent
Vis--vis the Nice status quo
­ explicit political rejection of any constitutional reference
­ unawareness/tacit acceptance turned into explicit dissent
Vis--vis the Constitutional Treaty
­ deletion of the constitutional symbols of Art. 1­8 CT
­ amending rather than repealing the Treaties limits the
symbolic potential of codification
­ recognizing rather than incorporating the Charter limits its
symbolic visibility as a Bill of Rights
­ overall: `re-de-constitutionalization' of the reform process,
substance and discourse
Overall, the LT is a symbolic setback vis--vis the CT, but the failed attempt at explicit constitutionalization
and the rejection, rather than avoidance, of a constitutional register also undermine the incrementally
reached and permissively conceded status quo ante.
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At the supranational level and despite the gradual constitutionalization
of Europe's legal discourse, there has been `no single document, or compilation
of documents, which social practice refers to as the constitution of the
European Union' (Menéndez, 2004, p. 120, italics in the original). Instead,
lawyers and legal scholars have invented diverse concepts to capture the nature
of the Treaties: there has been talk of a `constitutional charter' (Case 190/84
[1986]), of an `intermediate status'(Grimm, 1995), of a `constitutional system
in the making' (Piris, 2000) or of a `Treaty Establishing a Constitution for
Europe', as the CT was officially called. Similarly, in a survey conducted in
2002 at the height of the Convention's activity, only 28 per cent of respondents
said they were aware of the constitutional process, but 67 per cent then
supported the idea of creating a `European constitution' (Commission, 2002,
2003). From a purely logical perspective, such calls would have been implausible
had a constitution already existed and been backed by a social practice of
referring to the document as such (Grimm, 1995, p. 288; Menéndez, 2004,
p. 120). The Treaties' form, complexity and technicality, as well as their length
and linguistic ambiguity, seem to have hampered rather than fostered recognition
and identification. Functionalism not symbolism has traditionally been
at the heart of Europe's legal foundation.
If public recognition and (explicit) societal consent have long been left
wanting at the supranational level, the latest reform round has dealt them
two further blows ­ first and indirectly, by purging the CT's formal and
material reforms of any symbolic value; second and directly, by `re-deconstitutionalizing'
the reform discourse and process.
The previous two sections have demonstrated that the Lisbon reforms
moderately bolster theTreaties' formal function but add little in material terms.
While a similar conclusion could be reached about the LT's predecessor, there
is one significant difference: two of the CT's formal and material amendments
would have also reinforced the Treaties' symbolic potential; yet, they were
stripped of any such symbolism in Lisbon. First, repealing rather than amending
the existing Treaties and distinguishing clearly between constitutional and
policy provisions, codification under the CT would have played a symbolic as
well as a formal role. Contrary to expectations raised when the CFE started its
work, the Constitutional Treaty would not have been a readable, pocket-sized
constitution. However, the CT would have been one text, whose structure
would have made it easier to distil and recognize Europe's ordering principles
and validity claims. Second, the TEU(L) gives the Charter of Fundamental
Rights legal value; the CT would have incorporated the Charter as its Title II.
While this would not have changed the Charter's legal role it would have
maximized its symbolic function as a visible `Bill of Rights'. Such symbolism
would have been particularly important given the Charter's limited material
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contribution to Europe's rights status quo; removing it from the LT's main
body underlines the new document's anti-symbolic message.
Yet, the Treaties' symbolism was not only weakened indirectly by stripping
the CT's formal and material reforms of their potential symbolic function; it
was also weakened directly by first pushing and subsequently revoking explicit
constitutionalization. Indeed, starting in May 2000 with the famous Humboldt
Speech by Germany's then Foreign Minister Joschka Fischer, for a brief while
Europe's well-established linguistic ambiguity was transformed into an
`explicitly constitutional register'(Walker, 2006, p. 14, italics in the original).
Five years and the CT's ratification fiasco later, Europe saw yet another
linguistic u-turn: post-2005 any constitutional reference was painstakingly
avoided, and European constitutionalism was openly denied. Among the best
illustrations is the European Council's mandate to the IGC 2007, stating simply
that the new Treaty `will not have a constitutional character. The terminology
used throughout this document will reflect this change' (European Council,
2007a). Furthermore, any symbolism directly targeted at fostering public
recognition ­ such as the flag, the anthem or the motto included in the CT ­ was
removed. The political tone in combination with the new legal provisions thus
conveys a clear and strongly anti-symbolic message: constitution is the `c
word' again (Weiler and Wind, 2003, p. 1), and Europe is constituted by an
international Treaty. Significant in and of itself, this message becomes even
stronger against the backdrop of the explicit interim: pre-2000 constitutional
terminology and symbolism were avoided; now they are rejected outright.
The Constitutional Process
So far, the lack of public recognition and (explicit) societal consent has been
linked to the Treaties' form and substance, as well as to Europe's constitutional
discourse. The following turns to the way the Treaties have come about.
Indeed, if a constitution's recognition can spring from the authority of its
authors, from the explicit consent of those concerned or from the law's moral
force (Raz, 1998, pp. 157ff.), none of these are given in the case of the EU.
The constitutional process has been incremental and evolutionary ­ based on
the Court's jurisprudence, everyday politics and Treaty reform ­ rather than
led by figures commanding symbolic authority. Functionally desirable, this
process contributed little to increasing public awareness, recognition or identification,
and has been more apt to familiarize the public with national
interests and power struggles than to command moral authority. Furthermore,
although some national governments have ratified the existing Treaties by
referendum, and although all reforms have passed national parliaments, the
Union's constitution has never been explicitly endorsed by its citizens. Albeit
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shared with the US Constitution and Germany's Basic Law (Skach, 2005),
this feature has consistently been used both by proponents of a constitutional
moment (Habermas, 1995, 2004), and by opponents of a `thick', supranational
constitution (Grimm, 1995).
It is in this last respect that the Lisbon Treaty ­ or, more precisely, the
Lisbon process ­ has most decisively diluted the symbolism of Europe's
constitutional order. Indeed, if we subscribe to the argument that a modern and
democratic constitution needs to go back `to an act taken by or at least
attributed to the people' (Grimm, 1995, p. 299; see also Menéndez, 2004) the
latest reform round was, if anything, a further step away from `mobilized
deliberation'(Ackerman, 1991, p. 7). So far, the Treaties have been set up and
changed without explicit popular endorsement in most countries, but they
have been ratified by parliaments and, in some Member States, by referendum.
It was one aim of the Convention to democratize constitutionalization and to
strengthen the Treaties' symbolic function through a `moment of constitutional
import'(Walker, 2006, p. 12).Yet, both politically and symbolically the
process backfired: first, the CT was rejected in popular referendums in France
and the Netherlands; second, following a `period of reflection' the constitutional
process was decidedly de-democratized. In stark contrast to the
2002­03 Convention process, the Lisbon negotiations thus not only saw the
language of international diplomacy return, but also its method. The latest
Treaty was agreed in secluded top-political negotiations and was to be ratified
in national parliaments ­ with referendums explicitly excluded in all Member
States but Ireland, which is constitutionally obliged to ratify by popular vote
and which stalled the ratification process with its `no' in June 2008.
In sum, previous Treaties have been changed without explicit popular
endorsement in most European countries; Lisbon would ­ eventually ­ be
passed despite the explicit popular rejection of its predecessor as well as an
initial Irish `no'. The widespread popular unawareness of the last decades ­ or,
to put it more positively, the tacit acceptance of the Treaties as `lawyers' law'
­ is one matter; the explicit `re-de-constitutionalization' of Europe's reform
process and discourse is quite a different development, which will lastingly
undermine the symbolic potential of the EU's legal and political order.
Conclusion
Prior to Europe's interim of explicit constitutionalization hardly any scholar
doubted the existence of a `thin' supranational constitution, yet almost everyone
contested its `thickness' ­ albeit on different grounds. Indeed, looking
back at Raz' constitutional criteria, EU primary law has fulfilled some of his
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standards and defied others ­ written but not codified in one single document,
superior and justiciable but subject to potential constitutional conflict, constitutive
of a system of government but only in a functionally restricted
domain, stable as concluded for unlimited duration but inherently flexible and
evolutionary, displaying a common ideology of policy objectives and governing
principles but deficient when it comes to public recognition and explicit
societal consent.
Against this backdrop, the article has assessed how much `constitution' is
left in the EU's latest Treaty. To do so, I started from two propositions: first,
that the constitutionalization of Europe is a process rather than a fixed state in
time; and, second, that to (re-) locate a Treaty on the continuum that is (de-)
constitutionalization we need to disaggregate the concept of constitution into
its formal, material and symbolic functions. Indeed, scholars and politicians
have disagreed about where to place the latest reform on the EU's constitutional
continuum ­ some have argued that Lisbon and the CT make almost
identical qualitative leaps while others have claimed that the new Treaty lacks
any constitutional quality. Yet, few analysts have looked in any detail at what
the Lisbon Treaty can do and why it is likely to do more (or less) than
Europe's current constitutional order or the CT.
In a nutshell, after analysing how Lisbon impacts on the formal, material
and symbolic functions of Europe's constitutional order, I conclude, first, that
the latest reforms further strengthen Europe's `thin' constitution: juridification
increases, if at the expense of the supranational level. Yet, Lisbon
weakens Europe's `thick' constitution vis--vis both the Nice status quo
and the Constitutional Treaty: it bolsters the Treaties' formal function only
moderately, adds little to their material role and decidedly undermines
their symbolic potential ­ both indirectly by stripping the formal and material
reforms of their symbolic contribution, and directly by ostentatiously
de-constitutionalizing the reform process, substance and discourse.
More specifically, post-Lisbon theTreaties' formal function is strengthened
when it comes to codification and constitution in the narrow sense: Lisbon
codifies more and more explicitly, it further develops and defines the Union's
institutional framework and it clarifies the vertical distribution of competences.
At the same time, the Lisbon Treaty is a further step away from a single
constitutional document, while the Lisbon process has politically challenged
the established legal principles of supremacy and justiciability. Furthermore,
where Lisbon bolsters the Treaties' functions to codify and constitute, this is
done so as to protect rather than to undermine national sovereignty ­ in
particular through the principle of conferral and the right to secession.
Turning to the Treaties' material functions, Lisbon, on the one hand,
amends and adds to Europe's principles of government: the new Treaty
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recognizes the Charter of Fundamental Rights, it contains a Title on democratic
provisions and it introduces two new channels of participation: the
citizens' initiative and the involvement of national parliaments. On the other
hand, the new participation rights are strongly anchored at the national level,
and, more importantly, the British and Polish human rights opt-outs undermine
equality before the law as a core principle of constitutionalism, thus
offsetting any material gain through the Charter's recognition.
Finally, both the outcome and the conduct of the IGC 2007 have dealt the
Treaties' symbolic potential a lasting blow. First and indirectly, the CT's
formal and material reforms were purged of their symbolism: amending
instead of repealing the existing legal order, codification adds further
complexity and makes it harder to recognize the Treaties' constitutional
function; recognizing rather than incorporating the Charter reduces the text's
symbolism as a European `Bill of Rights'. Second and directly, Lisbon
not only abolished the constitutional symbols of the CT; it explicitly
de-constitutionalized the reform process and discourse. Pre-2000 constitutional
language was avoided, public recognition was minimal and the constitutional
process was incremental and built on the (implicit) acceptance
of the Treaties as `lawyers' law'. Following the interim of both explicit
constitutionalization and explicit popular dissent, the Treaties are openly
denied a symbolic function, and the constitutional process is ostentatiously
de-democratized.
In sum, the latest reform round has moved Europe's legal and political
order closer to the `thin' end of Raz' constitutional continuum. This conclusion
suggests that calls to ratify the Lisbon Treaty by referendum, justified by
an alleged saut qualitatif or competence transfer, are ill-founded. It also
explains why the concept of a (European) constitution can still have such
different meanings in different contexts.
Correspondence:
Christine Reh
Department of Political Science
University College London
29/30 Tavistock Square, London WC1H 9QU
Tel +44 (0)20 7679 4772
email c.reh@ucl.ac.uk
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