The Treaty Establishing a Constitution for Europe and the Democratic Legitimacy of the European Union

Elisabeth Zoller
Professor of Law
Université Panthéon-Assas (Paris II)

The Treaty Establishing a Constitution for Europe is a voluminous text of 341 pages and articles that marks the first time Europe has had a formal constitution. As was intimated at the end of the Nice conference and plainly stated in the Laeken Declaration, the major, if not only, reason to switch from a treaty-based to a constitution-based system was the necessity for the Union “to become more democratic.” Why? Because since its inception, but even more visibly today, EU institutions exercise legislative powers over European citizens; these institutions are empowered to take “action that [has] the purpose and effect of altering the legal rights, duties, and relations of persons,” without these persons having the conviction that these powers are legitimate, as are powers exercised by duly elected and mandated national bodies. This system of government is seriously undermined by the perception that its decisions come from a smug, sometimes arrogant bureaucracy that is accountable to no one. The Laeken Declaration, which launched the project of a constitution for European citizens, was extremely lucid, if somewhat understated, on that issue when it acknowledged: Within the Union, the European institutions must be brought closer to its citizens. Citizens undoubtedly support the Union’s broad aims, but they do not always see a connection between those goals and the Union’s everyday action. They want the European institutions to be less unwieldy and rigid …. More importantly, however, they feel that deals are all too often cut out of their sight and they want better democratic scrutiny.

So much energy was mobilized to draft a constitution for Europe because a constitution was supposed to cure the Union of the deadly malady that is sapping it, the so-called “democratic deficit.” Ameliorating that deficit was the priority of the Constitutional Convention, as indicated by the mission assigned to it by the European Council of Laeken: “More democracy, transparency and efficiency in the European Union.” Evidence that “more democracy” was the top priority of the Convention could be found in the citation to Thucydides that originally opened the Draft Treaty prepared by the Convention presided over by Valéry Giscard d’Estaing: “Our Constitution … is called a democracy because power is in the hands not of a minority but of the greatest number.” The intergovernmental conference decided to delete that citation on the grounds that it was incompatible with the principle of equality of states. Although that deletion may not, in itself, say much about the real democratic content of the project, its symbolic significance is telling.

Contrary to the expectations raised in 2000 by the speeches of the German Minister for Foreign Affairs, Joska Fisher, and the French President, Jacques Chirac, in which both leaders called for a European constitution that would create a democratic European Union, the Draft Treaty Establishing a Constitution for Europe, adopted in Brussels in June 2004, has not established a real democracy. Power is still not with the people, but with the states. The democratic legitimacy of the European Union is still not grounded on a solid foundation, and the democratic deficit remains high. Real power remains with the bureaucracy–the Commission–not with the people. Part I of this paper explores why this remains the case, despite a few cosmetic improvements to the democratic content of the project. Parts II and III explore how the project was unable to go beyond the entrenched governmental power of the European bureaucracy, and eventually reinforced it, making democracy an almost insuperable task.

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