Year XLIX, 2007, Number 3, Page 199
European People, Constituent Power and the Building of a European Federal State
GIULIA ROSSOLILLO
Recent events in the process of European integration, in particular the use of a convention to draw up the text of the Treaty establishing a Constitution for Europe, and the rejection of the said text in the subsequent French and Dutch referenda, have led many to point out the importance of the role of popular will in the European building project. Popular will is generally seen as a driving force in the process of integration, and also as a force working against the states, which are determined not to relinquish their hold on the key attributes of national sovereignty. If, then, the people of Europe were allowed to express their will freely (as they were doing, some say, through the Convention, until the Intergovernmental Conference stepped in to scrutinise and modify the text it had produced; and as they would have done, the same people say, in the Netherlands and France, had the referenda in those countries not been conditioned by domestic political issues), the difficulties encountered by the process of integration could soon be overcome, thanks to the will of the citizens to move rapidly in the direction of an ever more united Europe.
Reflections of this kind certainly highlight the need to think hard about the meaning of terms such as people, citizenship, and constituent power when they are used in reference to the process of European integration. Indeed, they can easily generate confusion and misunderstanding when they are transposed from the national setting, where they originated and evolved, to the supranational one.
1. European Citizenship and National Citizenship.
Even the Treaty establishing the European Community is sometimes guilty of applying these terms inappropriately. Its use of the term European citizenship is a case in point.
As we know, the concept of European citizenship was introduced into the Community system with the Maastricht Treaty, the aim being to give the Union a stronger political character (this was the “evolutionary” period in the process of integration that brought the decision to take the important step of creating a European currency).
The term “citizenship” was used, implicitly, in the same way as it is when it is used in reference to the modern democratic states, that is, to denote the bond between an individual and a political community, a bond that gives the former the right to decide the destiny of the community through his participation in the choices that shape its very life. Evoking the idea of citizenship was thus a means of conveying the idea that the Community was evolving into something more than a purely economic entity.
The European Court of Justice has always interpreted the provisions on European citizenship broadly, seeking for example to guarantee, as far as possible, people’s freedom of movement within the Community area; yet European citizenship still emerges as profoundly different from national citizenship.
First of all, the provisions on citizenship are structured in an entirely different way in the European setting compared to the national one. In the case of European citizenship, they take the form of a simple and definitive list of the rights held by each European citizen; in national law, on the other hand, the various aspects of citizenship status give rise to a seemingly endless assortment of rights and obligations. In fact, European citizenship grants an EU citizen only: the right to vote and to stand as a candidate in municipal and European elections held in his member state of residence, the right of free movement and of establishment in any member state, the right to enjoy the protection of the diplomatic and consular authorities of any European member state in third party countries where his own state is not represented, the right to appeal to the European Ombudsman, and the right of petition to the European Parliament.
Furthermore, if European citizenship really were structured along the same lines as national citizenship, the provisions on European citizenship would concern only relations between the citizen of the Union and the Community institutions. But this is not the case: some of the Treaty’s provisions on European citizenship serve to regulate relations between the foreign citizen and the state in which he resides. We may consider, as an example of this, the provisions on the right to vote, and to stand as a candidate, in elections to the European Parliament and in municipal elections:[1] the rule that a citizen of a European member state can take part in European and municipal elections in the state in which he resides, even if he is not a national of that state, is one that concerns the citizen’s relations with the state in question, not his relations with the Union’s institutions.
But what really distinguishes national from European citizenship is the fact that the latter does not give rise to the rights and obligations typically associated with “classic” citizenship. European citizenship does not imply an obligation to do military service, since there is no European army and defence does not fall within the competence of the European Community. In the same way, it does not give rise to any fiscal obligations, since economic and fiscal policy are still in the hands of the member states and the European institutions do not have the power to impose taxes. Finally, European citizenship does not give the citizens the right to choose their own government, because Europe does not have a true government.
It is, in fact, quite easy to see why European citizenship has this limited and singular nature: it derives from the attempt to use a term citizenship — that implies a bond with a political community — in a context in which this type of community simply does not exist.
In a democratic state, when one talks of citizenship one is referring to a political community that, through democratic means, chooses and controls its own elected leaders, and, through them, ultimately has the power to take the decisions crucial to its own future: it is the citizens as a whole, the people, the ultimate holder of sovereignty, that, having elected its leaders, agrees to obey them.
The limited nature of European citizenship is due precisely to the absence of this sovereign power at European level. Indeed, for there to exist a bond of citizenship in the traditional sense of the term, by which we mean the power of individuals to determine the destiny of the political community to which they belong, the bodies and representatives that the citizens have chosen must be equipped with the capacity to decide the destiny of those same citizens; in the EU, this is not the case. The power to decide in relation to the essential questions that concern the citizens generally (questions such as peace and war, fiscal policy etc.) is still in the hands of the states, which thus continue to be the holders of sovereignty. Consequently, even though the European Union is the world’s most democratic international organisation (being the only one to have a body, the European Parliament, elected by the citizens by direct universal suffrage), much of the significance of this is lost when one considers that the European citizens are not able, through the election of their representatives to the European Parliament, to contribute in any real way to the crucial political decisions that shape their future.
It is also easy to appreciate the bond between citizenship (in the full sense of the term) and sovereignty if one considers that only in one other instance has the term citizenship has been used, as it is in Europe, in association with a limited set of rights: I am referring to the citizenship of the Commonwealth of Nations, an organisation that is obviously not a sovereign body, or one in the process of evolving towards its ultimate transformation into a political community. In fact, citizenship of the Commonwealth (like citizenship of Europe) does not replace an individual’s citizenship of one of the Commonwealth’s member states, but exists in addition to it; and it is a form of citizenship that gives rise to rights very similar to those deriving from the provisions on European citizenship contained in the EC Treaty (right of movement, right of participation in the elections held in one’s member state of residence, right of diplomatic and consular protection in countries in which one’s own country has no diplomatic and consular representation).
The only Community act to contain a formulation of European citizenship more advanced than the current one was the 1984 Draft Treaty establishing the European Union, a project characterised by a strong federal orientation. Indeed, article 3 of this treaty, by affirming that European citizenship meant taking part in the political life of the Union, enjoying rights enshrined in Community law, and being obliged to respect the provisions laid out therein, linked the status of citizenship with an indefinite series of rights and duties, which is exactly what we see in the national systems.
2. Popular Will and the Treaty Establishing a Constitution for Europe.
The above-described situation would not have been changed in any radical way had the Treaty establishing a Constitution for Europe come into force, and the same will be true of the Reform Treaty, should it be adopted.
Neither instrument really alters the basic terms of European citizenship. And, moreover, the only provisions that relate to the citizens’ participation in the life of the Union — these are not part of the provisions on citizenship (nomination of the President of the Commission and the citizens’ right of initiative) — do not really change the role of the citizens compared to the existing Treaties.
With regard to the nomination of the President of the Commission, article 1-27 of the constitutional treaty stated that the European Council, taking into account the outcome of the elections to the European Parliament, should propose to the Parliament the name of a candidate — until now the candidate has always been nominated by the Council acting by a qualified majority and submitted to the European Parliament for approval — and that this candidate should be elected the European Parliament by a majority of its members. However, this change, i.e. the part referring to the European Parliament elections, does nothing to alter the fact that President of the Commission is chosen not by the political majority that was victorious in the European elections, but the European Council (i.e., by the member states); indeed, the European Council undertakes merely to take into account the results of the elections to the European Parliament. Furthermore, it is again the Council, by common accord with the nominated President of the Commission, that chooses the other members of the Commission. It is thus a procedure that fails to give the citizens the power to choose, through the European Parliament, the members of the Commission.
With regard to the citizens’ right of initiative, article 1-47 of the constitutional treaty merely established that no fewer than “one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission […] to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution”. It is, in short, merely the right to encourage — there is nothing binding about it — the Commission to propose legislation, while the power actually to do so remains firmly in the hands of the Commission, in other words in the hands of an institution that has no democratic legitimacy.
The failure to introduce real changes with regard to the role of the citizens is due to the fact that neither the Treaty adopting a Constitution for Europe nor, even more so, the treaty that will replace it in the future, alters the nature of the European Union: the EU continues to be an international organisation without a government accountable to the citizens, and without competence in the fields of foreign policy and defence, or in those of economic and fiscal policy. These powers, which are the very cornerstones of sovereignty, remain in the hands of the states, leaving the Union still incapable of taking the decisions crucial to the lives of its citizens.[2]
The serious consequences of this weakness of the European institutions are exacerbated by the fact that the European states, too, have gradually lost their capacity to take decisions in these areas, or at least to take decisions that carry any real weight. Many of the issues that affect people’s wellbeing and that really affect their lives (one need only think of the environmental problems we face) are now decided outside the confines of Europe’s nation-states, and cannot be tackled with the instruments and resources that the nation-states have at their disposal. In this way, on the one hand we have an increasingly weak national citizenship, unable to embody the citizens’ right to make the decisions that most profoundly affect the life of the national community, and, on the other, a European citizenship which cannot compensate for this weakness on account of the absence of a true political power at European level.[3]
This contradictory situation, which is due to the inadequate scope of democracy and citizenship, could have extremely grave consequences: ultimately, it could cause the citizens simply to lose their faith in the state and in democracy.
3. The Need to Overcome the Current Framework.
In the current political debate, there seems to be no real sense of urgency over the need to find a solution to this impasse. Indeed, attention is focused mainly on the minor adjustments that could be made to the existing Treaties and on what should be included in the future Reform Treaty.
The policy of step-by-step progress, or gradualism, which has characterised the process of European integration ever since the collapse of the EDC, and which is today the only route that the national governments and European institutions seem capable of considering, demands, in order to work, that two conditions be met: first, there has to be a common final objective, shared by all the states, towards which the process must move (in the case of the process of European integration, this objective is the creation of a federal state); second, there have to be further small steps that still need to be taken to bring us closer to the ultimate objective. Today, in Europe, neither of these conditions is met. First, there is no longer a common final objective that is shared by all the states: at the start of the process of integration, Europe’s six founding member states were united in their desire to prevent, through the creation of a European federation, the outbreak of another war; today, on the other hand, the European Union embraces countries, like Poland, that openly and vehemently reject such a prospect. Second, there are no small steps that can still be taken in order to bring us closer to the final objective; it only remains to take the great and final step of creating the European federation. No proposal for changing the structure of the European Union, unless it is advanced with a view to creating a European political power and bringing about a relinquishing of sovereignty by the member states, can now help to solve the problems set out above.
Therefore, texts like the Treaty establishing a Constitution for Europe (and, even more so, the Reform Treaty), by setting out to make only minor changes to the existing Treaties rather than to tackle the crucial question of the relinquishing of sovereignty, and being designed with a Europe of 27 members, or even more, in mind, in other words for the present European framework, is, by definition, bound to be entirely ineffectual.
The significance that many attached to the means through which the text of the Draft Constitution was drawn up, i.e., to the Convention — some saw the Convention as the expression of the constituent will of the European people — also needs to be played down. First, the Convention was operating within a clear mandate, set out in the Laeken Declaration, which concerned sectors that did not touch on the essential cornerstones of national sovereignty: it was immediately clear that the members of the Convention, by sticking to this mandate, were not destined to change the nature of the European Union, that is, to turn it into an entity endowed with sovereignty. Second, the process of drawing up the text of this treaty, even though it involved a body, called the Convention, which some saw as the expression of the constituent will of the European citizens, was in fact a procedure that reflected entirely the logic of the Treaties. Indeed, as stipulated in the Laeken Declaration, the final text of the Draft Constitution was put to an intergovernmental conference for appraisal and would have come into effect only if all the member states had approved it, each in the manner provided for in its respective constitution.[4]
Hence, if a constituent process, by definition, implies an overturning of the pre-existing rules and the choice of a new form of political existence, that is, if it implies a break with the existing rules and sets itself outside their ambit, in such a way that its legitimacy cannot be determined on the basis of the rules that have, up to that point, been in place, then we can certainly say that the process for drawing up the European Constitution did not correspond to the exercising of constituent power by the European people.[5]
4. The Federal Core and Constituent Power.
If what has been said thus far is true, then what is clearly needed is a reform of the European Union that extends beyond the confines of the current framework. In other words, in the presence of 27 member states, some of which are openly opposed to any form of political integration, preferring instead to see Europe transformed into a purely economic area, the question of a multi-speed Europe has to be raised.
But if, before we can even talk of citizenship and democracy, there indeed has to be a political community, and thus a political power capable of representing the citizens’ right to decide their own future, then a multi-speed Europe can only mean the creation, by those states that wish to pursue this project and that are willing to relinquish their sovereignty, of an initial federal core — an out-and-out state, open to any EU state that should, in the future, wish to become part of it. Only in this way can the first truly supranational form of democracy and citizenship be realised.
But how can this step be taken? And what role should the “people” play in the creation of the new power?
First of all, it must be pointed out that the creation of this federal core would certainly have all the attributes of a constituent process. It would not, in fact, be a reform of the Treaties carried out on the basis of the procedures provided for in those same Treaties, but instead a break with the norms that govern the working of the Union and the revision of the Treaties and an expression of the will to move outside the existing framework in order to create a new sovereign entity.
However, in this case, the problem of identifying the holder of constituent power and the ways through which this holder of power might manifest itself becomes particularly tricky.
Usually, when we talk of a people exercising its constituent power, we are thinking, essentially, of the history of the European states and the constituent processes whereby, in the various countries, one form of government was replaced with another. In the case of a federal core embracing only some of the EU’s member states, however, we would be referring to the creation of a new state entity embracing a territory in which there had hitherto existed several different national sovereignties.
Thus, the already difficult and complex business of identifying the constituent power and the subject, defined the “people”, that is the holder of that power becomes even more difficult and complex when it is a question of creating a federal core from a number of previously separate nation-states.
In fact, as has already been pointed out “le peuple ne préexiste pas au fait de l’invoquer et de le rechercher: il est à construire”;[6] in other words, the exercising of constituent power by the people presupposes that the people have an awareness of their own political existence;[7] certainly, with regard to the creation of a federal state from a number of states, this awareness appears to be lacking. Unless “people” is interpreted as an ethnic concept (an idea I do not share), an entity that can be called a people can be deemed to be present only when there exists a political project, and specific values, with which individuals can identify; but of course, for the people to be able to identify with it, the project must first be in place.
There is no need to emphasise the fact that the creation of a federal core uniting some of the current EU member states would be an event of fundamental historical importance, or that the project would have to enjoy broad public support in order to come about at all. The problem is that the European people cannot gain an awareness of its own existence until such time as it is called upon not merely to reject the power structure (a European Union incapable of acting), but indeed to appraise its position vis-à-vis a new and different form of organisation of power;[8] in other words, when someone proposes the creation of a federal core and takes the initiative of building this new state.
It is likely that this task will fall to the states, or some of them, that, at the end of the Second World War, decided to create the European Coal and Steel Community, Euratom and the European Economic Community. These are, in fact, the only EU member states that have seen European unification as a process that, through the creation of a federal state, would rule out for ever the possibility of further wars breaking out on European soil. They are also the states that have been a driving force in the process of integration. Only if this initiative is taken will the people be in a position to intervene (supporting it in the states that will have proposed it and putting pressure on the governments in those left out of the initiative) and to choose its representatives in a constituent assembly.
But all this needs to happen soon, before it is too late. Indeed, should the solution fail to materialise, in the ambit of some of the member states, the European Union will simply carry on being what it is today, an organisation increasingly incapable of meeting the needs of the citizens. If this happens, the citizens’ support for the process of integration, and with it all hope of creating a united Europe, will evaporate rapidly, leaving the European states as the mere satellites of some global superpower. The European Union’s lack of a political dimension and, as a result, the restricting of its decision-making capacity to purely technical questions, will inevitably culminate in completion of the current bureaucratisation of the EU and feed the resentment of the citizens, who feel that they are being forced to submit to the decisions of bodies that have no legitimacy.
On the other hand, the prospect of creating a federal core endowed with limited competences, but with all the powers it needs to meet the needs of the citizens, would boost public support for the European building project and provide the basis for the people’s true exercising of its constituent power.
[1] Article 19 EC Treaty: “1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State. 2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.”
[2] The Treaty establishing a Constitution for Europe leaves economic and fiscal policy in the hands of the member states and does not create any common foreign and defence policy, stating only that “the common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements” (art. 1-41, par. 2), and that the “Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council” (art-1-41, par. 3) (this thus means military capabilities belonging to the member states, which the member states will voluntarily place at the disposal of the Union).
[3] See Jürgen Habermas, “Citoyenneté et identité nationale. Réflexions sur l’avenir de l’Europe”, in Jacques Lenoble, Nicole Devandre (editors), L’Europe au soir du siècle. Identité et démocratie, Paris, 1992, pp. 17 onwards, in particular p. 32.
[4] In the declaration on ratification of the Constitution, annexed to the Treaty establishing a Constitution for Europe, it was stipulated that if two years after the signature of the constitutional treaty, four fifths of the member states had ratified it and one or more member states had encountered difficulties in proceeding with ratification, the matter should be referred to the European Council. But the European Council takes decisions by unanimity and the member states would never have agreed unanimously to the constitution’s coming into force only in those states that had ratified it. What is more, the entry into force of the constitution in a limited number of states could never have led to the formation of a federal core, given that no provision was made in the constitutional treaty for the replacement of the EU with an alternative, truly sovereign body.
[5] According to Carl Schmitt, Verfassungslehre (6th ed.) Berlin, 1983, the power to modify the terms of the constitution (regulated by a positive constitutional legislation) cannot be defined constituent power. Indeed, it is a limited power, incapable of upsetting the framework of the existing constitutional order. Describing the American experience, Bruce Ackermann (We the People. Foundations, Cambridge-London, 1991, pp. 167 onwards) points out how, just six years after the ratification of the Articles of Confederation, “after a short summer of secret meetings, thirty-nine ‘patriots’ at the Convention were not only proposing to destroy the initial hard-won effort. They were also claiming authority, in the name of the People, to ignore the rules that the Articles themselves laid out to govern their own revision. The Articles explicitly required the agreement of thirteen states before any constitutional change was enacted, yet the Founders declared that their new Constitution spoke for ‘We the People’ if only nine states give their assent”.
[6] Pierre Rosanvallon, Le Peuple introuvable, Paris, 1994, p. 18. As pointed out by Edmund S. Morgan, Inventing the People, New York-London, 1989, p. 153, “before we ascribe sovereignty to the people we have to imagine that there is such a thing, something we personify, as though it were a single body, capable of thinking, of acting, of making decisions and carrying them out, something quite apart from government, superior to government, and able to alter or remove a government at will, a collective entity more powerful and less fallible than a king or than any individual within it or than any group of individuals it singles out to govern it”.
[7] Carl Schmitt, Verfassungslehre, cit., p. 114.
[8] According to Carl Schmitt, Verfassungslehre, cit., p. 120, in critical situations, when a people says “no” to an existing constitution, their position is clear only because it is a rejection, whereas their positive will is less clear to see.
