Which constitution for what kind of Europe?

In: (Constitutional Online Papers 03/03 ). The Federal Trust for Education and Research: London, UK.

Abstract

Discussion of the pros and cons of an EU constitution tends to focus upon two issues. On the one hand, proponents and opponents of reform seek to legitimate the EU as a 'regime', or form of governance. For example, strengthening the powers of the European Parliament is hoped to improve democratic accountability, while incorporating the Charter of Fundamental Rights of the EU is suggested as a way of enhancing legal integrity and the rule of law. On the other hand, debate centres on the EU's status as a 'polity', and the degree to which a Constitution might allow a clear demarcation of what is the EU's area of competence and what remains the domain of domestic governments and legal systems. These two issues are inter-related. Yet, neither politicians nor many academics explicitly address the connections between them. Some focus on 'regime' considerations and seek, almost as an after thought, to tailor them to their preferred view of the EU polity. Others, especially Eurosceptics, treat the very discussion of the EU as having a regime, as an undesirable move in the direction of acknowledging it as a polity. In this piece I wish to suggest that both approaches are misguided. Regime and polity interact, with the latter constraining (without determining) the former. I shall explore the three dominant models of constitutionalism to be found within European political discourse: a rights-based model, a popular sovereignty model and a common law model that employs elements of each. Whilst the first two are the most frequently employed by proponents of constitutional reform, I shall suggest that it is the third that best represents the actually existing EU constitution. Moreover, it has been the key to the successful integration of Europe hitherto precisely because it has allowed both the 'regime', and 'polity', dimensions of the EU to develop in tandem.