European Union: Treaty Establishing a Constitution for Europe(2001-2005)

As is the case of much of the existing international legal order, the European Union (in its origins the European Communities) was a direct consequence of tremendous violent disturbances.

All in all, by the beginning of the twenty-first century, the European elites embarked themselves on a comprehensive reform of the architecture of the European Union without any immediate political or economic turmoil. It is true that the fragile sensation overshadowing the Western world as a result of the attacks on New York and Washington on September 11, 2001 might have motivated the need to accelerate the political integration of the continent (in fact, the European Council that called for the European Convention took place in Laeken in December 2001, barely a few months after the attack) but institutional reform had already been conceived in the Intergovernmental Conference held in Nice in December 2000, when few turbulences were visible on the horizon. Rather than terrorism or the fears of an economic default, the main concern of the European leadership, causing them to promote the change in the legal framework of the European Union (EU), was marked by the enlargement of the Union towards the former Communist States in Eastern Europe. In a sequence relatively rare in comparative perspective, the European constituent initiative was not a consequence of a humanitarian disaster (though challenges of such a kind would arise shortly after with profoundly divisive repercussions among the Europeans once the United States launched their crusade against Afghanistan and Iraq in retaliation for the September 11 attacks) but an attempt to digest a success: the victory of the European liberal democracies upon their socialist counter-model in Eastern Europe, a victory which, with the exception of the disintegration of Yugoslavia, had been developed in quite peaceful terms.

The process towards what had to be called the Treaty Establishing a Constitution for Europe was not, in summary, inspired by any collective tragedy. Together with the fact that the drafting proposed did not represent a radical mutation in the allocation of power between the States and the Union (the States still were characterized as “the masters of the Treaties”) the reasons for the failure of the reform were unsurprising. The European Union would continue to be a Union of States, in which said States would still retain their basic attributes of sovereignty, including the right to secede unilaterally from the organization. Though the Convention in which the European constitutional Treaty was drafted mirrored itself on the 1787 Philadelphia Convention, few people, apart from those participating in the refined debates at the academic level, saw in the new constitutional proposal a transformation which might be compared with the transformation experienced in America in the transit from the Articles of the Confederation to the Federal Constitution.

The shrining of the word “Constitution” in the title of the treaty equally did not mean that the European process could be identified with the scene of a demos giving itself a constitutional framework, as had happened with the constitutional movements in revolutionary France. To begin, there was no demos (nor was there a common European political space) and that was, precisely, the main deficiency. The different demoi within the European nation-States were not

“New constitutionalism” & constituent power 177 likely to be very interested in the operation promoted by their respective elites, in spite of the fact that such elites, eager to consolidate a fully liberalized market within the new legal framework of the Union, habilitated different channels to ensure the participation of European citizenry in the process.

Beyond the formal and informal mechanisms of submitting proposals by a wide range of actors, some governments decided to call for referenda on the ratification of the text.

The lesson was well learned by the European elites and the following reforms entailed in the Lisbon Treaty, straightly presented as an international treaty change dispossessed of any constitutional resonance, were passed without being ratified through referendum by the citizenship of the Member States (with the exception of Ireland, whose Constitution required a referendum to be held on such matters. The Irish People refused in the first term the Lisbon Treaty in 2008, a decision that was reversed in a second referendum in 2009).

The European experiment developed between 2001 and 2005 was ambiguous in its constitutional character. No immediate tragic precedent had instigated the drafting, and there had not been any disruption affecting the continuity of European elites which were the main actors pushing towards the achievement of the reform. If approved, given the scarce affection on the balance of powers, less could be really said regarding the constitutional theory that I have exposed. The thesis would be able to be maintained: after all, there would have not been a real constitutional transformation since the process had emanated from a violent background. But in its failure, we may find further evidence to support the idea that sober discussions, no pressing conflictive circumstances, and public indifference (probably explained because those dramatic circumstances are not given) do not lead to any significant event in constitutional terms.