Year XLVIII, 2006, Number 3, Page 158
The Project for a Political Europe in the Wake of the 2005 French Referendum
A reflection on the French referendum of May 29th 2005 that, with a majority of around 55 per cent, rejected the Treaty establishing a Constitution for Europe cannot be separated from a reflection on the future European model, necessarily in the framework of a one-speed or a multi-speed federal design. The problems raised during the French referendum campaign, the different arguments presented by the two sides, and the French people’s intense participation in the debate cast our proceedings today in a special light, to which I feel it is important to draw attention. Even though one may be disappointed — as I was — by the negative result, it nevertheless has to be acknowledged that the entire Treaty campaign has brought out the strengths, but also the weaknesses of this project of European construction.
The result of this referendum is paradoxical. Conducting a survey among my students at the start of the academic year, or talking to friends who voted “no”, I find that many say they rejected this text because it was insufficient. Most of those opposed to this Treaty in France, above all on the left, were against it essentially for two reasons: it did not pursue European integration enough, and what is more, it pursued it badly. This is why it seems to me important to draw a distinction between the French referendum, which, in the final analysis is a bearer of hope, and the Dutch “no” vote, which can undoubtedly be interpreted as a rejection of the very concept of European integration.
So, what exactly is the paradox of this French referendum, which might prove useful to our discussions today? Last year, the debate centred on whether or not to reject Part 3 of the Constitution, which relates to EU policies. Its core, i.e., Parts 1 and 2, on the other hand, gathered almost unanimous consensus, if we discount the odd squabble among experts which, in the end, made little impression on public opinion. Let us recall that modification of Part 3 of the Constitution was not part of the mandate conferred on the Convention by the Laeken Declaration, and that this part had, in fact, already been adopted through the referendum that ratified the Maastricht Treaty in 1992. And herein lies the irony: this third part had been added symbolically to the Treaty drawn up by the Giscard Convention on the request of the French representatives, who wanted the Union’s final text to be complete and coherent, not split in two, with the institutions on one side and the policies on the other.
Thus, the French voted against a text whose essence (Parts 1 and 2) they generally supported, and, obtained the opposite of what they had hoped for, i.e., conservation of Part 3, which has already come into force in the absence of the necessary political and legal instruments, instruments for which the Treaty under ratification made provision. How is it possible to say ‘no’ to a Treaty you approve of and, in so doing, give your blessing (through your own vote) to that which you reject? The great paradox embodied by this French result will have to be resolved before any further steps towards European integration are taken; otherwise, there is a risk of creating a Europe against the will of the people, which is the last thing we want — at least, I hope.
To ensure that this French result is not subject to facile criticism, it must first be made clear that the referendum campaign was conducted in exemplary fashion. Of course, there was behaviour that sullied the debate; false and demagogic arguments did the rounds in both factions, via the internet for example, without there always being the possibility to correct information or issue denials, etc. But these things are among the traditional excesses of democracy and of electoral campaigns. In truth, there was, generally speaking, great freedom of speech, which gave everyone the possibility to form their own definite opinions. For many months, countless debates were staged all over France, in schools, in universities, in various meeting places, from town halls to cafés, on television, within the political parties, and so on. Books introducing readers to the Treaty or setting out the arguments for and against it were among the best sellers of the period. Every day, the newspapers published articles and readers’ letters on the issue. In short, I have rarely seen such an active and well-documented campaign (in this regard, it far exceeded the one on Maastricht in 1992). In short, the French made a convinced and certainly an informed choice, and as such, this choice cannot simply be criticised or ignored. Moreover, I do not think that any other European state had such an outstanding debate on this issue.
I would say, in fact, that the main problem with this campaign was not the quality of the debate, but rather the framework in which we were forced to conduct it. The real problem — the one which sank the whole referendum, and with it the outline of political integration it contained — was that of the terminology used.
French has long been the language of diplomats, and the French have always loved to play with their language. But in the context of this campaign, they in some way rejected the words that were employed, and that they were being asked to accept. The Giscard Convention offered the Europeans a Treaty establishing a Constitution for Europe. Any legal expert would shudder at such a choice of expression, which puts a treaty on the same level as a constitution, and would indeed appear to equate the two, completely in contempt of Kelsen’s pyramid of norms. Before long, everyone was talking of the “constitutional treaty”, which in legal terms is an even more unfortunate expression. Basically, the French simply refused to accept that the members of the Convention and the member states that had ratified the Treaty should be allowed to play around with words in this way, using them incorrectly; essentially, they caught them in their own trap.
Many French people believed, or wanted to believe, that they were voting on a constitution. They therefore expected, from this Treaty, the same things that they would have expected had they been faced with a question of fundamental law. Disappointed, they voted “no”. Conversely, those who analysed the treaty as a treaty proper could not accept that it was called a constitution and that it created a political framework worthy, or almost worthy, of a state. They voted “no”. What about the most convinced Europeanists, who wanted greater integration and who were willing to overlook the confusion over whether the treaty was a constitution, or vice versa? Well, this group saw that the text they were being offered was a fudge — it did not demand that a choice be made between one course and another; it failed to go far enough — and they refused to accept a perpetuation of this uncertainty. They, too, voted ‘no’.
Thus, the first lesson to be learned from this referendum is one for the European legal experts and politicians: beware of playing with words and, in so doing, with people’s hopes, because there is always the risk that the people will take you seriously. The French did!
That said, this language problem is not merely a question of semantics or of political strategy. The members of the Convention wanted to introduce the idea of a European “constitution”, which, in itself, is not something to criticise. But they lacked the courage to follow through the consequences of this. When one talks of a constitution, or of a treaty, the consequences, in legal terms, are not the same. The first failure in this referendum is thus, without doubt, down to the European strategists themselves, who were unable to decide exactly what they wanted. And the French were unwilling to support a project that did not disclose clearly its ambitions.
The fundamental problem to be resolved, highlighted by the French “no” vote, is that of clarifying what the objective of European integration currently is, and what stage in it we are being asked to overcome. This issue has been complicated by Europe’s enlargement to twenty-five member states, as the Union now embraces countries that are, economically, politically and juridically, increasingly different, and whose objectives are sometimes even contradictory. Thus, the questions that must be answered boil down to two: must European integration be based on the adoption of a treaty or a constitution? And, in either case, should this text unite all the states, or only those that want to proceed further towards political integration? Since the purpose of this meeting is to consider the prospect of European integration at different speeds, this is the perspective from which I shall try to analyse the situation, leaving aside the debate — albeit fundamental — on whether there is actually a need for differentiated integration.
Europe’s political integration could be continued, first of all, within the framework of the traditional Europe, starting from the Treaties — either as they are now or modified — and deciding the manner of the differentiation between the member states. This is the most pragmatic course, but it carries risks, which need to be identified (I). Alongside this hypothesis, and above all from the viewpoint of the creation of a federal Europe, we find the other solution: that of founding Europe on a genuine constitution. But the creation of this federation demands that two underlying problems be resolved: the size of the federation and the procedures that should be followed (II). The choice of one or the other of these two solutions is primarily a political one and without doubt dependent upon an evolving historical and geopolitical scenario. But if, within the context of the possible creation of a federal Europe within the European Union, a multi-speed Europe should mean a parallel development, i.e., the political integration of some alongside the economic integration of all, then this will create real legal difficulties relating to the co-existence of the two systems, and I will look at these briefly in the conclusions. In fact, given that these problems are still virtual, and too dependent on the concrete political solutions that will be adopted in the future, it is difficult, at present, to establish their clear legal implications.
I. Political Differentiation within a Traditional Union.
This scenario is that of a European Union based on a treaty and not on a constitution, and it allows two needs to be met. First of all, it allows less integration than the federal solution does, and thus safeguards national sovereignty. In this framework, in fact, the European Union is attributed with only limited competences and, while European law can always prevail over national law, the member states do not lose entirely their sovereignty, either in strategic internal sectors or at international level (for example, they retain their seat at the United Nations). Furthermore, this form of integration, in particular through the system of protocols, allows the development of a many-speed Europe through the aggregation of those states that want to proceed further or the dissociation of those unwilling to pursue more resolute forms of integration, the behaviour of the various states being allowed to vary, depending on the policies in question.
This traditional Europe can be considered to tackle, to a great extent, one of the problems raised by our meeting today. It allows differentiated integration and it can also give rise to cooperation agreements of a political nature. But it cannot lead to a political Europe. In fact, this differentiation, an inherent part of this traditional Europe, creates instability, be this within (a) or outside (b) the EU, and prevents the creation of a coherent political organisation. The many-speed Europe we are talking about here is none other than the Europe that is already in place, and for which, equally, the 2004 Treaty made provision. But should it be confirmed in the wake of the “no” votes that came out of the French and Dutch referenda, in the absence of a “plan B” we can certainly expect to see the introduction of certain corrective measures in order to counter a growing risk of disintegration.
a) The Formation of a Hard Core through European Law.
Within each of the three current pillars of the EU, provision is made for the creation of “hard cores”, which correspond either to dissociating or to aggregating states, depending on the questions on the table. It is a process that can be likened to the construction of a multi-speed Europe.
Thus, within the framework of the first pillar, we must mention, first and foremost, the eurozone. This group embraces just twelve of the European Union’s current twenty-five member states, leaving out the ten states that entered the EU in 2004, plus the UK and Denmark, which chose not to be part of the single currency, and Sweden, which still does not meet the convergence criteria.
Equally, we must recall the Schengen area, which the Amsterdam Treaty integrated into the Community framework. Only thirteen of the twenty-five EU member states are part of this area — not included are the ten newest member states, plus Ireland and the UK —, but it does include non-EU members Norway and Iceland and, as of this year (2006), Switzerland, which voted in favour of participation in its June 2005 referendum on the issue. A similar situation emerges with regard to the Dublin Convention on the rights of asylum seekers.
Within the framework of the second pillar (Common Foreign and Security Policy), we must consider essentially the enhanced cooperation policies provided for by the Treaty on European Union (TEU) modified by the Nice Treaty (Art. 27a onwards). In this framework, the Council authorises the formation of enhanced cooperations subject to certain conditions and the hard cores created in this way can thus differ from cooperation to cooperation. The same applies to the cooperations that are in some cases chosen by the Commission, and accepted by the Council, in the framework of police and judicial cooperation in criminal matters (the third pillar, TEU Art. 40 onwards). Article 11 of the Treaty establishing the European Community (TEC) also makes provision for these cooperations within the framework of the first pillar, in certain cases attributing the European Parliament with a right of veto.
In more general terms, enhanced cooperations are envisaged for Union policies as a whole in Title VII of the TEU (Art. 43 onwards) and were again included in the 2004 Treaty (Articles I-44 and III-416). In these cases, it is European law itself that provides the framework allowing the emergence of one or more hard cores in the sectors in which the Union has competence.
But what is the nature or value of these enhanced cooperations? First of all, it has to be remarked that they do not appear to be particularly useful within the framework of the first pillar, where Community integration has already reached an adequate level, or meets essentially objective criteria (e.g., convergence criteria) designed to discourage a further deepening of integration. In the framework of the second pillar, it must be noted that enhanced cooperations are prohibited in the sphere of defence or in fields that have military implications (Art. 27b of the TEU). Yet these are the fields, having particularly strong political connotations, in which it is easiest to envisage the formation of a stable hard core. On the other hand, the power of the Commission, and in some cases of the Parliament, to select the cooperations seems to work against the will of the states, a factor that could dissuade the latter from using them. In more general terms, numerous factors seem to seem to reduce considerably the effective use that the member states can make of these cooperations, particularly in sensitive sectors: the obligation to gather a minimum number of states in order to realise them (the TEU demands eight, and the 2004 Treaty a third of the members), the encouragement to get the greatest possible number of states to take part (TEU, Art. 43b), and the need to guarantee that enhanced cooperation does not weaken the domestic market and social cohesion (Art. 43e), together with the measures to ensure consistency with EU and Community policies, guaranteed by the Commission and the Council (Art. 45), and the possibility of recourse to the European Council.
It therefore seems improbable that a political hard core can be formed within the framework of these enhanced cooperations. The hard core they are able to generate either has to change according to the different fields of cooperation, or aims to extend rapidly to all the states; or, indeed, the differentiation stems not simply from a spontaneous decision reached by the states, but is, rather, the result of a choice made by the European institutions or by the Treaties.
To favour the possible formation of a political hard core there thus seems to be a need to modify — if this is still possible — some of the current limitations. It would be necessary, for example, to allow enhanced cooperations in the military field, to lower or even abolish the minimum number of states needed to realise them, and to strengthen the states’ decision-making powers and perhaps even their power to depart from Community law. But if we envisage this kind of progress in political fields, we must also be prepared to accept its democratic correlative, namely the intervention of the parliaments and of the national and European judiciary in order to guarantee more soundly the assent, and the rights, of the citizens; because it is out of the question to think of creating a political Europe that is not subject to the same working rules as are applied to all political communities.
But the construction of a political Europe on the basis of enhanced cooperations produces a double risk. If excessively encouraged, these cooperations could lead to the collapse of European integration through the formation of intra-Community alliances capable, when it is time to reach collective decisions in the bosom of the EU or the EC, of placing corporative interests in opposition to the general interest. Furthermore, enhanced cooperations could depart too much from Community law, which would destroy the very legal unity being sought. Conversely, set in too rigid a framework, these cooperations could be off-putting and induce states to pursue common, targeted actions outside the EU system. In this case, the Union, under the weight of the competition from these other alliances, would be unable to acquire a clearly political dimension. The alliances, for their part, would not be equipped either to replace the Union efficiently, or to serve as the basis for a new organisation with a political vocation, being founded on cooperations that would be too changeable, too narrow, and too focused on specific interests; furthermore, the members they would bind together would be too liable to change from cooperation to cooperation. In this way, Europe would no longer have one hard core, but many hard cores, recalling the far from perfect situation of the nineteenth and twentieth centuries, characterised by numerous alliances that proved incapable of preventing the wars of those centuries. It is a risk that is now clearly emerging, reflected in the growing number of interstate cooperations that we are now seeing in Europe.
b) The Formation of a Hard Core through non Community Treaties.
There is another idea that competes with that of the establishment of a hard core within the Community: that of the adoption of treaties outside the framework of the European Union.
In this case, we must consider two separate hypotheses. The first is that of the treaties or conventions signed by EU member states, which wereprovided for by the TEC and by the TEU in order to develop or complete the law in the areas in which the EU has competence. Article 293 of the TEC provides for the concluding of such treaties, or conventions, in relation to the protection of the individual, double taxation, recognition of judgments, company law, etc. In this ambit, we can also recall the Europol and Eurociel agreements, as well as the European Patent Convention and the European Bankruptcy Convention. In truth, this intra-Community conventional law, often called “supplementary law” is very important; it is a system that produces legislation every bit as efficient as that of Community law, to the point that Community law can sometimes even be dispensed with. But it avoids the democratic process developed since the Maastricht Treaty; in particular, it gets round the decision-making power of the European Parliament. Equally, it fails to recognise systematically the competence of the Court of Justice. Further, these treaties or conventions, even though they influence our daily lives, often deal with questions of little political significance.
From the point of view of European integration, these treaties are thus at once interesting and dangerous. By imparting greater flexibility to the production of European laws, they help to reduce, at the same time, the clarity of the Union’s image and of its laws, too often defining as “European” laws that are not, in fact, EU laws. What a confusing situation for the defendant, what a lack of clarity for citizens and for our students! What is more, when even one state decides not to ratify such a treaty (and by so doing stands out a little from the general homogeneity of Europe), this creates a real legal difficulty. It is thus unlikely that a political European Union can be constructed on the basis of these treaties.
Let us take the other hypothesis: the building of hard cores that, with regard to their competences and members, have no direct link with the EU.
A typical example of this is military Europe, which was based, in part, on the Western European Union (WEU): starting with the Single Act in 1986, and subsequently through the Treaties of Maastricht and Amsterdam and the progressive entry of the EU member states into this organisation, the WEU became the “armed wing” of the European Union. But this option was abandoned following the Cologne European Council in June 1999, and the Nice Treaty and the Laeken Declaration in 2001. Instead, faith was placed in a European Union that would express its own common military policy directly, rather than “subcontracting it” to the WEU. But common endeavours at EU level are still awaited. The European Security and Defence Union (ESDU), proposed in April 2003 by Germany, Belgium, France and Luxemburg with a view to securing greater independence from NATO, was rejected by the more pro-Atlantic member states, such as the UK and Poland. Since then, common military policy has been replaced by a series of specific and variously formed cooperations: the Eurocorps (made up of soldiers from Germany, Belgium, Spain, France and Luxembourg), Eurofor and Euromar (the latter, a rapid reaction force created on 5th July 2000 by a convention between Spain, France, Italy and Portugal), the military satellite, Helios (funded by Belgium, France and Spain), and so on.
In a different framework, we must recall the Schengen Agreement of 1985 and the Schengen Implementation Convention of 1990. These agreements, which now include non EU member states as well, were initially signed by five states that, while certainly EU members, took this step entirely outside any Community mandate.
These military and policing arrangements could prefigure a more determined drive for political integration, creating ties that could serve as a model for the European institutions. But they also risk relativising the whole integrative force of the European Union. Because these treaties could just as easily be seen as alternatives to common European policies, and not as examples. Above all, they give rise to changeable alliances, embracing a territory that is also changeable and that can be extended to states outside the European Union, something that could seriously complicate the political and legal coordination of the two systems, above all when regional strategies oppose the collective strategies of the European Union. Could the Eurofor intervene in a European state, contrary to the opinion of the EU? Could the EU ask Euromar to support a military intervention already rejected by states that contribute to this force? In fact, the EU member states risk creating, among themselves, associations capable of setting, effectively, their own interests in opposition to the collective European interest (we may think of Benelux, the Visegrad Group, the Nordic Council, the project for a Franco-German Union, etc.). They could also veer towards alliances that include non EU member states (NATO, OSCE, Mediterranean Union) whose interests would complicate and compete with Europe’s ambitions. Were this to happen, Europe would be left with no choice but to become a large economic and social market, completed, in the political sphere, by these other evolvingalliances. While some of these initiatives outside the ambit of the Community could, in fact, be brought back within that of the EU, following the example of the Schengen Agreement, which the Amsterdam Treaty brought within the Community framework, the same probably cannot be said of many of the military and policing conventions, as these seem to concern sectors too sensitive to allow this.
Finally, the different alliances hypothesised here open up a prospect that has a direct bearing on our proceedings today. A European treaty that establishes a European confederation outside the EU is certainly not inconceivable. Such a treaty, signed by states that desire it and are united in this desire, would bring about a uniting of their will in different spheres — military and diplomatic, or economic and social — in a manner different from that of the Union and more in line with their wishes. This confederation would allow the idea of European integration to be re-launched on the basis of a new project, and could constitute the initial core of a future European state. Such a scenario, however, could easily lead to the disintegration of the current Union, since it would prompt the dissenting states to leave the Union in order to form the new confederation. In fact, the exit of these states from the Union would simplify considerably, from a legal point of view, relations between the confederation and the European Union, which would be regulated purely through diplomatic channels, would not come under the control of the Court of Justice, and would be free from all constraints deriving from membership of the European institutions. But this hypothesis — highly plausible — of a new confederal Europe must not allow us to forget the primary objective of a truly federal Europe, which implies the drawing up of a constitution with a clearly political purpose.
II. Political Integration within a Federal Europe.
Today’s Europe is faced with the problem of how to create a “community” that is not based on a pre-existing “affinity”. It is, in truth, a problem that confronted most of Europe’s historical rulers, from the Middle Ages through to the founding of the nation-states. But the means of solving it has changed. Now, the powers-that-be can no longer simply impose, through force, their political order. Democracy rests on the people’s acceptance of their project.
This complicates things considerably if the powers insist on presenting their project from on high. The European Parliament provides by far the best example of this. Even though the European Parliament is supposed to be the place where the European peoples are represented, the place that guarantees the expression of their will within the democratic system of the Union, it is clear that they do not always identify with it. The big irony is that the more powers and legitimacy the European Parliament acquires (co-decision, the capacity to appoint and dismiss the Commission, the possibility to appeal to the Court of Justice, etc.), the less the European citizens are inclined to participate in its election. Clearly, the European Parliament’s problem is not the democratic deficit — now largely overcome — but rather its credibility. But why does it have this problem? It is because instead of allowing it to emanate from the people, attempts were made, from its conception, to impose it from on high. Well, the European peoples are diffident: they do not want to be given freedom (or democracy): they want to take it, or acquire it by themselves (because they are sovereign).
It is rather like the problem we see today with regard to the construction of a federal Europe. The process cannot be imposed from on high, but must originate “from the bottom”, where legitimacy resides. Naturally, the initiative to get a federal process started will undoubtedly, at some point, go through the established political powers, national and/or European. But it cannot deny the people their voice, otherwise it will have to pay the price of growing disinterest or rejection of the project. This is certainly one of the biggest lessons to be learned from the “no” pronounced by the French people in their referendum.
The problem of a federal Europe is twofold: it concerns, at the same time, both its content and the process of its creation. But, in fact, this twofold problem itself offers the solutions it is looking for, and in so doing makes it possible to resolve the question of the size of this federation. A federal state differs from an international organisation in that it possesses Kompetenz Kompetenz, that is, the competence to determine its own competences; an international organisation, on the other hand, can act only within the ambit of the competences that are attributed to it. Affirmation of this Kompetenz Kompetenz requires the presence of an acknowledged constituent power, a supreme seat of sovereignty, and thus the drawing up of a constitution that, through its adoption, transfers sovereignty from the states to the newly created state.
The conditions governing the adoption and content of such a constitution (as opposed to a “Treaty establishing a Constitution for Europe”), contained in the classical theories of constitutional law, are well known but they must be read in the light of the French referendum of 2005 (a). The procedure for adopting this constitution will determine, almost naturally, the spatial dimensions of the federation created. But if the territory of this federation turns out to be different from that of the Union, without the federation actually replacing the Union, then there will arise delicate questions relating to the legal co-existence of the two entities (b).
a) The Democratic Adoption of a Federal Constitution.
The process for the drawing up and adoption of the Treaty establishing a Constitution for Europe was undoubtedly one of the most democratic employed since 1951 in order to draw up a European treaty. Two thirds of the members of the Giscard Convention came from the various national parliaments and they represented all the different political families. The work conducted by the Convention was open to public scrutiny through consultations with experts of all political orientations, from the various associations and from different economic and political settings, through internet forums and through numerous meetings held in the different states. This allowed some highly divergent projects to emerge. The final text was adopted — and this is rare — by consensus and not through the imposition of the choices of a majority: the legitimate political powers in each state were able to modify this final text, the same text that was finally adopted by the peoples of the different states, either directly through the holding of referenda, or indirectly through their representatives in parliament.
And yet the referendum campaign in France highlighted clearly the illegitimacy of this Convention and of this procedure for drawing up a “constitution”. Certain arguments in this regard may well have been advanced in bad faith. After all, in France there are numerous examples of constitutions drawn up by small groups of experts, starting with that of the Fifth Republic, or by assemblies that were not, legally, constituent powers (in 1791, 1814, 1830 and 1875). But this made no difference: the French refused to accept the imposition on them of a text that they themselves had not been able to influence from the outset, and that they were being asked to ratify unconditionally. They said “no” as much to the text as to the procedure used, which reduced them to nothing more than a mere means of recording a decision already reached.
The requirements of modern democracy and the obligation to obtain the agreement of the sovereign power, particularly in a field as crucial as the creation of a federal state, demand a rethinking of this entire constitutional procedure. If the constitution is the responsibility of a constituent power, a sovereign power, then this power needs to be clearly present throughout the process of its adoption. Thus, there arise two problems: who is the constituent power in Europe, and how can this power be mobilised?
The answer to the first question, in the framework of the established states, can be found in classical theory: the People (possibly regarded as the Nation). In the European setting, however, the reality is that of a number of different peoples, which empties this concept of much of its constituent force. This explains why, in the framework of the 2004 Treaty, we see the development of another hypothesis, expressed in article 1, which refers to the will of the citizens and States of Europe. This seems to indicate that the United States of Europe, or United Europe, because of its federal character, has a dual constituent power: the citizens and the states. Accordingly, every constitution must ensure that there is room for both these facets of the constituent power. This is what the procedure for the adoption of the 2004 Treaty intended to do, given that it was to be written by a relatively democratic Convention, corrected by the states, and adopted directly or indirectly by the peoples.
This idea of a dual constituent power is a fascinating one. It makes the foundations of democracy once more a topical issue and it takes into account the complexity of the modern world and the decisive role of the executive powers. And yet it appears rather dangerous. In fact, it recognises the important power of the authorities, against which the rules of contemporary sovereignty were rightly created. If the purpose of affirming the people’s sovereignty is to limit the powers of the rulers, the dual sovereignty expressed in the 2004 Treaty, on the contrary, reinforces the fundamental power of these executive authorities and increases the risk that the power of the state will be exercised against the people. This solution is thus liable to create a growing diffidence on the part of the people, who would see their democratic choices once more thrown into question by raisons d’état and by other strategies of the machinery of state. Instead, the construction of a federation demands, first of all, a restoration of trust between the citizens and the national and European authorities.
Without presuming to establish, here, an absolute theory of the European constituent power, I nevertheless feel that it is necessary, in order to restore this trust, to go back to the classical formulas of constitutional law: the convening of a constituent assembly elected by the citizens of Europe. The task of this assembly would be to write a text that would subsequently be submitted for ratification by the different countries, either through a referendum, or through approval by the national parliaments. This would have to be done without any modification of the text on the part of the states or the European institutions, as such intervention would interfere with the expression of the popular will. Some aspects of this solution must, however, be examined.
First of all, it must be established where this initiative should come from. The decision to convene a constituent assembly and to make provision for the election of its members is one that must certainly be taken at European level, either by the general consensus of the member states themselves, or simply by those states that are interested in the initiative. From this perspective, there are various types of action, geared to this end, that may be envisaged: popular petitions launched through the mass media, the internet, the decision-makers of all political colours, or through high-profile public figures, and supported by demonstrations throughout Europe, a project proposed by a group of states, a proposal from the European Parliament or from any other European institution, and so on. It is also clear that any one of these initiatives would not, by itself, be sufficient and that the whole process will depend a great deal on the economic, political and social context, and on how acutely the political actors of a future federation feel the need for such an action. We must not allow ourselves to be taken in by the pious political speeches (Joschka Fischer, Jacques Chirac) in which this hypothesis has already been considered: in the absence of pressure exerted by civil society, or of new economic and social crises, this process cannot be entrusted solely to statesmen who would have everything to lose in a federation that would deprive them of their personal power.
The convening of a constituent assembly also carries a certain risk: that of allowing the production of a text far removed from the will of the European experts and the states’ politicians. This assembly could even write a text that would not be in the best interests of Europe, but would be the result of difficult and unsatisfactory compromises reached between its members. But risk is an inherent part of democracy, which is based on recognition of the peoples’ capacity and legitimate right to choose their own destiny, beyond rational calculations.
The election of a constituent assembly is certainly not legally necessary in order to write a constitution, but it is a political necessity. What is more, it has theoretical and practical advantages: first of all, the drawing up of a constitution by a constituent assembly would make it possible to get round the restrictions imposed by the states themselves, states that, from 1951 onwards have produced increasingly complex treaties in order to protect their own autonomy, as the Maastricht Treaty showed. A text written by representatives of the European citizens, who do not have to defend the same interests as the states, would undoubtedly have the advantage of being simpler. What is more, this constituent assembly could possibly make much more progress in the direction of federal integration than the states could, given that the state powers never really go so far as to sacrifice themselves in favour of a superior entity.
From a democratic perspective, the election of this constituent assembly would also make it possible to conduct a sort of self-survey, in other words, to ascertain the natural dimensions of all the different pro- and anti-European currents present within the member states, because it would not, after all, be legitimate to create a highly integrative federation if the populations showed themselves to be rather nationalist. This election would thus serve to set the tone of the future Europe on the basis not of projects developed in the corridors of power, but of the citizens’ own wishes. Finally it would allow the citizens, in particular, to take possession of the European project, in a sense to become its authors, which fits in perfectly with the whole constitutional philosophy.
It is impossible to predict what type of federation this sovereign constituent body might choose. In truth, there exist as many types of federation as there are federal states, and Europe’s choices will depend largely on the power relations that, within the constituent assembly, are formed between the various elected members and political parties. On the other hand, there exists no concrete definition of constitution. The text of a constitution can contain provisions of any kind. But, without doubt, the content of this constitution will nevertheless have to take into account what happened with the 2005 referendum in France, and also the criticisms that were raised during the debates, which will make it possible to arrive at the basic outline of this fundamental text.
The supporters of the campaign to say “no” to the Treaty establishing a Constitution for Europe were helped considerably in their task: all they had to do was produce the text in order for their entire audience to laugh out loud upon realising that they were being asked to adopt, in full awareness of all the facts and implications, a massive 800-page tome. In addition to the Treaty’s 448 articles (!), there were dozens of pages making provision for the management of special cases and adding details through protocols, appendices, special agreements, and so on. To those a little better acquainted with the text, it appeared that Part I presented the institutions and provided practical information on them (role, mode of operation), only then to refer readers, sometimes with the emergence of contradictions, to Part III, which dealt with policies, but also with the organs and institutions: a second raising of these issues that did little to facilitate the reading of the text.
A constitution must obviously be a fairly simple text that cements the political, social and possibly economic pact that a constituent power makes with itself. It must define the legitimate institutions, the way they will work, and how they will relate to one another, just as it must set out the principles that provide the framework for their actions (art. 16 of the 1789 French Declaration of the Rights of Man and of the Citizen). In a federal setting, the constitution must also establish the competences that will be recognised at each level, that of the federation and that of its members, as well as the organs entrusted with ensuring that these are respected. In short, it limits itself to describing the essential operating principles of the political society it has generated, after which it must leave it to the actors in the various roles it has created to put these principles into practice or to act on the basis of them. A constitution cannot compromise policies subsequently decided by the organs created.
Accordingly, there would, for example, have to be an end to the obligatory policies provided for by the Treaty, which preclude the consideration of possible other forms of action on the basis of electoral results. The ECB’s obligatory anti-inflationary policy is a typical example of this. Similarly, the harshness of the euro convergence criteria, or the absolute ban on state aid to enterprises, seem out of place in the text of a constitution, because they oppose the application of other political strategies, such as those of a Keynesian nature, or certain specific re-distributions of wealth. While a constitution can certainly contain fiscal or economic provisions, it should not boil down only to these, or restrict itself to specific ones. It should set out, from the very first articles, and not in Part II, the fundamental rights that form the framework for federation policy. A constitution is, first and foremost, a political pact, not a collection of economic dogmas that even more laissez-faire states, like the USA, do not apply and that certainly do not inspire the citizens. As regards its content, the European federal constitution must certainly draw inspiration from the classic federal constitutions of certain European states, which are much more readily understood by the citizens.
b) A Federation that Competes with or Complements the European Union?
The creation of a European federation poses various problems with regard to its relationship with the European Union, and particularly with regard to its members and the subdivision of competences. If it is the Union, en bloc, that becomes a federation, then there is no problem: it is simply a question of transforming the existing body with its existing members. The problems arise if the two institutions are separate, albeit co-existing in the same space. This separation is exactly what is contemplated within the framework of the integration of a many-speed Europe.
The first aspect of this co-existence to consider is the territorial competition that could arise between the two entities. But, all things considered, this should not constitute a problem. It seems rather pointless to try and establish, in advance, the size of this constitutional Europe. Doubly misleading are projects that aim to federate the countries belonging to the eurozone, or this or that group of states because they are, historically, among the founders of Europe or because they present cultural, economic or social similarities. First of all, the Europe these projects envisage is a rational Europe conceived of on high in accordance with technical criteria, a Europe that would be imposed on the citizens, who would merely be required to rubber stamp decisions taken above their heads. Second, it is a Europe based on similarities, a Europe that refuses the political challenge of diversity, being willing to unite only states considered to be sufficiently homogeneous. Moreover, a federation is, first and foremost, a political pact between states that share the same political will to unite, above and beyond their differences; it reflects the will of the citizens to support the project and, together, to take this step which, at the crucial moment, has to prevail over all the mathematical and rational criteria devised by the European bureaucrats.
Is it possible to imagine Italy without Puglia, considered too poor and too culturally far removed from Lombardy to be part of the same country? Could Germany be reformed leaving out a Land that does not meet the criteria of efficiency demanded by a more competitive federation? And how would Italy or France respond were the technocrats in Brussels to turn round and tell them that their internal situation, political and economic, made it impossible for them to remain in the “hard core” of political integration? It is clear to see: while political unification has to take into consideration the problem of excessive economic divergences between its members, it nevertheless cannot be based exclusively on performance ratings, as this would devalue the debate and lead to the sacrificing of willing peoples in favour of figures and plans. Preliminary calculations are irreconcilable with a credible political federation, and indeed plans of this kind, based on an initial subdivision of Europe, are still failing to resolve the problems of the project — the group that should take the initiative, the procedure that should be followed, the drawing up and ratification of the treaty —, which, in this case too, threatens to leave the citizens out of the process.
We must therefore go back to having faith, first of all, in the citizens — this is the essential basis for a project of this scope — and give them the freedom to make up their own minds. A broad project for the creation of a federation will have to be launched. Each of the Union’s member states will then be required to declare, through a referendum or a law passed by parliament, whether it wants to take part in it. The stakes are so high that this will automatically result in an initial selection. And one can be sure that the group of states that turns out to be most receptive to and most honest about the federal project will be very different from that hypothesised a priori. The states that are in favour will organise elections to appoint a constituent assembly. This assembly will produce a document which will then be put, for approval, directly to the citizens of the participating states, without the national and European institutions making any adjustments or alterations whatsoever. It is also likely that, to be on the safe side, a rule will be introduced saying that if the document is rejected by more than two thirds of the states, it will have to be rewritten (possibly by a new constituent assembly). But if more than two thirds accept it, through a referendum or a law passed by parliament, then the federation will automatically come into existence, uniting these states and leaving out those that refused to ratify the project. What is more, a federation that may include non contiguous states is not a problem, as shown by the United States of America, which includes Alaska, and by Greece’s entry into the Community in 1981.
We need to break free from the a-result-at-any-cost mentality. The Giscard Convention imagined that it would be able to impose its Treaty on all the members on the strength of a “yes” vote by a qualified majority, which would have amounted to imposing it on peoples that had rejected it. But if a federation is to be a pact based on trust, then the “no” votes have to be acknowledged, while still allowing those that want to proceed to do so. The anticipated “hard core” must be allowed to evolve by itself, through choices made by sovereign peoples. To give an example, some projects suggest that the European federation should be formed starting with the eurozone countries. This is a good idea, but it needs to be turned on its head: it is not the eurozone that should predetermine the federation, but the federation that should demand adoption of the euro. This, in fact, would make it possible for countries currently outside the eurozone to take part, albeit subject to their acceptance, again through the citizens, of certain necessary economic conditions. It is politics that must control the economy, not the other way round. In the words of President De Gaulle, “l’intendance suivra”. The Europe that emerges at the end of such a process will be a much stronger one, as it will be built on free will, on a real desire to live together, and not on the calculations of experts who have often got it wrong.
For this reason, it is very likely that the territory of the federation will be distinct from that of the Union. There are many consequences of this, each of which brings together a number of hypotheses regarding the co-existence of the two entities.
As far as the competences are concerned, there are many possible options: the Union could transfer its political competences (such as defence, the creation of an integrated jurisdiction, and of a federal police force, etc.) to the federation, or it could retain its competences in relation to the second and third pillars and the federation could act within the union in place of its single member states on the basis of the subrogation of states principle which is a characteristic of the Treaties. In the first case it is possible to imagine a merging of the EC and the EFTA, which would have become too similar to each other, with the EC nevertheless imparting some “extra soul” to the EFTA through its environmental, educational and health policies, for example. Moreover, the federal state’s Kompetenz Kompetenz would imply a review of the competences exercised by the Union, the first pillar included, regardless of whether the federal state assumes responsibility for these areas, agrees to delegate to the Union their management in specific cases, which would have to be decided (problems relating to agriculture, scientific research, etc.), or indeed respects the whole of the acquis communautaire, becoming a part of the Union and, like all the other states, bowing to the terms of the Treaties and the existing system of law.
It is equally possible to imagine a profound reorganisation of the Union. Leaving it to the federation to pursue an extremely advanced level of integration in the political and legal fields, this Union would be based on new treaties that, by making provision for simplified decision-making processes in limited fields, would be, at the same time, more unifying (which is not to say that they would imply a return to ambiguous and confusing “supplementary” law) yet also more respectful of the sovereignty of the states. Such a union could much more easily embrace other states and could even reach as many as 45 members (the members of the Council of Europe minus Russia) within the framework of a large, streamlined market, maybe even with a single currency, but it need not cause alarm to the states grouped in the federation, because they would have their own policies. From this perspective there would even arise the hypothesis of a merging of the EU with the Council of Europe.
It is certainly rather premature to reflect upon these aspects, many of which depend on the federal responses that will be given by a constituent assembly that, as yet, does not even exist. Having said that, the solutions that ultimately come out of the debates will undoubtedly be the simplest and the most economical. In fact, the prospect of drawing up a federal constitution and totally rewriting the European Treaties could well discourage the desire to choose solutions that are more refined and more ambitious, but also much more complicated. Thus, it is perhaps better if, like the Zen archer, we focus on the method, the procedure, rather than on the objective. The option of assigning the citizens and their representatives the task of searching for the solutions has to prevail over all other conceivable plans, which in due course will be elaborated.
It is worth considering one final possibility that, from one point of view, would ease the legal difficulties. It is that — already seen in relation to a possible European confederation — of creating a European federation outside the framework of the EU. Its members would leave the European Union in order to concentrate exclusively on nurturing the new federation. No longer obliged to comply with Community regulations, these states would escape the control of the Court of Justice and the Commission and, as a result, find themselves, once again, in full possession of their competences. They would have to redistribute these within the framework of the new federation, and they would be in a position to review, entirely autonomously, their relations with the other European states and with the Union. These relations could not fail to be influenced by historical and geopolitical factors, but, now being outside the framework of the acquis communautaire and of collective decisions, they would give a whole new dimension — still difficult to imagine — to the Federation-Union relationship. This deep division, which would undoubtedly influence the whole European and even world balance, is not as improbable as it might seem. And its knock-on effects would also force us to evaluate the whole question of federalism and differentiated integration with extreme caution. Advance too far and you end up having to retrace your steps; go too fast and you risk missing opportunities.
All in all, these reflections can be concluded with a semantic question. Should we call the federation thus envisaged the “United States of Europe”, in so doing echoing Victor Hugo and Winston Churchill, but also using a term that, with its obvious parallel with the Unites States of America, risks damaging its identity, or would it not be better, instead, to talk of “United Europe”, thereby emphasising the unity that this federation would produce and the solidarity among its members, who are grouped in a single entity that they have chosen to render more prominent? Again, the numerous legal solutions are dependent on political choices still to be made.