The constitutional debate in the European Union: A quest for a new paradigm

The first quinquennium of the 21st century started in a promising way for the EU’s institutional development, but is ending in uncertainty regarding its future. After the Nice- (2000) and Laeken (2001) declarations and the innovative and successful Convention (2002-2003), finally an agreement on a Constitutional Treaty was reached in the Intergovernmental Conference. In October 2004 this Treaty was solemnly signed by all member states and the candidate countries. Despite this apparent breakthrough, during the ratification process all demons of the past re-emerged. The nicely formulated parts 1 and 2 of the draft Constitution could not dissimulate the fundamental lack of clarity in the ‘finalité politique’ of the Union. Is the EU in ‘crisis’ (Juncker, Delors), or is this just a setback as there have been many in the 55 years of European integration? Can we go on with ‘business as usual’, neglecting the signal of so many citizens, especially if one takes into account the very probable ‘no’ in the rather eurosceptic countries where a referendum was on the agenda? The political class has learned to live with rather vague definitions as “an ever closer union” that dissimulate the lack of consensus among the member states on the very nature of the project and its institutional development. The problem is not new: exactly 30 years ago, the Belgian Prime Minister Leo Tindemans formally raised the issue in the newly born European Council (1975). His colleagues were most embarrassed and found a way-out by commissioning a report that, although well elaborated and very much to the point, was never seriously discussed. This time the debate no longer takes place behind closed doors or in academia. By organizing referenda, the general public has been invited to participate in a decisive way. Although in depth sociological studies on the negative response are not available yet, it is clear that for some voters the EU is perceived as a threat to national identity and sovereignty. For others, it paves the way to an ongoing process of enlargement that jeopardizes the existing welfare state model. A few groups, on the contrary, have regretted the lack of a ‘social model’, of a ‘projet de société’. Whatever the arguments might have been for the citizens’ negative reactions and whatever our opinion might be on their validity, one cannot deny the serious clash between the ‘inner circle’ of European policy-and decision-makers- both at the national and European level- and the general public, even in strongholds of ‘believers’ such as Luxembourg. The European Commission announced a period of reflection and launched its Plan-D for Democracy, Dialogue and Debate. It this contribution we would like to embark on a more structural approach. In our view the fundamental problem lies with the refusal by some member states of clarifying the state concept behind the Union. Of course, the European experience is a unique feature and its structures are ‘sui generis’. However, an unbiased analysis of the EU’s institutions, its decision-making processes and its policy formation, reveals quite a number of federal-type arrangements. Far from expecting any solution from an explicit qualification of the Union as a European Federation, we nevertheless start from the assumption that a more transparent and constitutionally entrenched division of tasks between member states and Union would contribute to clarifying the issue. Reference could be made to well-established federations, such as Germany, however without taking it as a model. In this article, we would firstly like to enumerate the many federal-type arrangements that can be observed in the EU’s present-day functioning. Confronted with the theories on federalism and federation developed in literature (M. Burgess e.a.), the EU appears as a quasi-federation, lacking the political philosophy of federalism. This imperfection should not prevent us from presenting the EU as a federal arrangement, since this model is widely appreciated for its clear division of competences and the constitutional guarantees it offers to the (hard core of) national sovereignty. Belgium is known for the strong federalist views of its political leadership and most of its citizens. Since Tindemans and Martens, prime-ministers as J.-L. Dehaene and, presently, Guy Verhofstadt, have played a pro-active role in promoting the process of constitutionalisation of the Union. Recently, M. Verhofstadt published an essay with the somewhat provocative title “The United States of Europe”. Those countries that would be unwilling to join the ongoing process of integration, should, in his eyes, be left out from the ‘avant-garde’ (Delors) and just take part in a free trade zone, called ‘Organization of European States’. Our contribution is not aiming at defending and propagating any particular Belgian view or position. However, in the current period of ‘reflection’ it may be interesting to notice the benefits of a structural approach, trying to elucidate the weaknesses of the present model instead of blaming the uninformed citizens. It was Robert Schuman who already had a federation in mind when presenting his Coal-and Steel Community. After realizing a ‘Pax Belgica’ in their highly complex country, many Belgians think that a federal solution would indeed be meaningful for Europe as a whole, combining a clearly defined ‘self rule’ for the member states with forms of ‘shared rule’ for the Union. Giving a name to the game would in any case make the exercise more transparent and, hopefully, more enjoyable.status: publishe