Why is there No EU Constitution? An Analysis of Institutional Constitution-Making in the European Union

In 2001, European leaders met in Laeken, Belgium at the Convention on the Future of Europe to discuss the direction and agenda for a stronger, more united European Union, as well as consider the possibility of a European Constitution. The bulk and complexity of EU legislation has made decision-making and institutional operations quite difficult, and many EU officials believed that a more concise and consolidated document encompassing all current EU treaties would offer clarity and transparency, while also creating more opportunities for improved policy coordination and public participation. Over a two-year period, officials drafted a lengthy Constitution of over 250 pages, detailing the structure, procedures, and competences of the EU, and these elites felt that their hard work would be well received and accepted by the European public. However, when the draft was sent out to member states for ratification, it was rejected by both France and the Netherlands, and the EU postponed the constitutional project indefinitely. After all of the time, money, energy and resources invested in the European Constitution, why did this project fail? This thesis will examine why there is no constitution for the European Union, for given the pro-European stance of the majority of member states and the consensus of heads of states on the Constitutional Treaty, the document should have passed. The overarching hypothesis guiding this study is that the drafting process was not conducive to successfully creating a constitution for the multi-national polity; within this initial hypothesis, three sub-hypotheses are also proposed, each examining a particular aspect of the constitutional writing process. Data used in this research includes both quantitative and qualitative elements, although the majority of evidence is mostly qualitative in nature. Quantitative data consists mainly of polling results and other statistics on EU legislative data and EU public opinion. Main sources of information include primary documents from the constitutional deliberations (both working documents and final publications), press releases, and official public statements. Secondary sources from other academics are also consulted. This project first suggests that the structure and decision-making processes of the EU are not favourable to creating large pieces of legislation, such as a constitution. With complicated voting procedures and the insistence upon unanimity during many decision-making processes, the nature of the EU is such that perhaps only superficial and ineffective agreements could be reached regarding constitutional issues. Research on national referenda and public opinion leads to the second sub-hypothesis, arguing that the drafting process seemed undemocratic to the national populations and thus contributing to the Constitution’s rejection. This hypothesis is considered in two parts: first, that there was not enough public consultation; second, that individuals participating in the drafting process were unrepresentative of member state populations. Conflicting motivations and national preferences of elites form the third hypothesis to explain the document’s failure, as different national agendas tried to create a constitution more favourable to some member states than others. Additionally, member states were committed to different EU goals, such as a federalist or confederalist Europe. The constitutional drafters had a plausible and laudable idea to create a “single legal personality,” making the EU better suited to “negotiate and ratify international treaties” and to become a member of “certain international organisations,” but the constitution also had numerous other goals, including military and social policy-making, which were not so well received by member states. The failure of the draft Constitution suggests that the EU must more clearly define its objectives before it can truly maximize its power and authority on an international scale. After analysing how the Convention on the Future of Europe was organised and managed, the degree to which Convention elites interacted with the European public, and the various disputes between delegates, it is clear that all three of this thesis’ hypotheses contributed to the failure of the European Constitution; nevertheless, not all of the hypotheses can be given the same weight, as certain factors had considerably more negative effects on the Constitution’s outcome than others. Research on the different elite motives and agendas shows that there was considerable tension amongst participants, but this type of conflict is not exclusive to the Convention on the Future of Europe. Throughout EU history, member states have frequently disagreed with each other, over both serious and more minor issues, yet the institution has still experienced over 50 years of success in reaching policy and legislative decisions, even while increasing the number of member states attending EU conferences and thus increasing to the number of possible preferences and national biases. Therefore, it is difficult to attribute the failure of the European Constitution to this hypothesis alone. Evidence suggests that structural and procedural difficulties, as well as poor communication between elites and the European public, were more influential in determining the outcome of the Constitution’s ratification. With the increased importance of public opinion during the constitutional process, inadequate consultation with European citizens and limited opportunities for civic participation appear to have had posed the greatest hindrance to public acceptance, while the complicated structure and inefficient procedures inherent within the EU further exacerbated the suboptimal elite-public relations. As the EU continues to expand and assert itself as a single entity on the global stage, improved processes are needed to more efficiently and effectively create legislation and enact any new policies to benefit Europe as a whole. The constitutional project may have failed, but it has provided insight into the current problems facing the institution today, and if officials take notice of the EU’s present shortcomings, there is the opportunity to correct past missteps and to move forward towards a more unified Europe