ABSTRACT
For some time, debate on the constitutionalisation of the EU has focussed on whether the EU needs a constitution and, if so, what kind of constitution. In this chapter, I argue that analysis of these core issues cannot be conducted in isolation from the forces and processes – micro-regionalisation, Europeanisation and globalisation – currently shaping the EU’s constitutional development and impacting on Member State political and social systems, in recognition that a decision to adopt a formal constitution should only be taken when these processes and forces have been fully understood and accounted for. I argue that the process of constitution-building is much broader than the outcome of the Convention on the Future of Europe – the Constitutional Treaty – which may be seen as a single ‘constitutional’ episode within this process. Introduction Thus far this book has sought to demonstrate that the ECJ, through its creative jurisprudence, has established a legal order that approximates a federation, and, in so doing, has augmented the treaty system from which the EU presently derives its constitutionality. Employing aspects of social constructivism, an explanation for the EU’s constitutional development has been proffered that highlights both the importance of institutional interactions on the process of constitutionalisation and the ways in which a legal/constitutional narrative has transformed expectations, interests and preferences in the EU. This task of characterisation has been aided by an interdisciplinary legal/political approach that eschews the prevailing tendency in political science to side with one or other of the ‘grand’ theories of EI, in recognition that each theoretical perspective offers answers to some of the questions being asked about the EU. The analysis, inspired by an interdisciplinary, multi-dimensional theoretical approach aims to deliver a comprehensive account of the EU’s constitutional development to date. A constructivist approach, with its
1 A version of this chapter has been published by Blackwell Publishing Ltd. Details are as
follows: M. Longo, ‘European Integration: Between Micro-Regionalism and Globalism’ (2003) Journal of Common Market Studies Vol. 41, No. 3. pp. 475-94. The author
transformative perspective and its focus on social realities allows one to identify the forces and processes shaping contemporary Europe; to look forward and make informed projections about where the EU may be heading. From this position, it is hypothesised, we may be better able to deal with the pervasive questions of whether the EU is in need of constitutional restructuring; whether it needs a documentary constitution; and, if so, of what kind and when. The following analysis therefore seeks to place these ‘constitutional’ issues within a broader ontology and context. The question of whether the EU needs a documentary constitution has been the subject of considerable debate, especially since Joschka Fischer’s now famous speech at the Humboldt University in Berlin on 12 May 2000.2 Many scholars have joined the debate with contributions as varied as they are confronting.3 With the Constitutional Treaty in an extended ratification phase,4 it may be opportune to examine the processes and forces currently shaping the EU’s constitutional development and impacting on Member State governmental arrangements, in recognition that a decision to adopt a formal constitution should fully comprehend and account for these processes and forces. As must now be clear, this book views the process of constitution-building as much broader than the constitutional deliberations set in train by the Constitutional Treaty. Constitutionalisation of EU governance, as described in earlier chapters, involves and relies upon more than legal rules, norms and procedures, important as these may be. It relies on more than the consolidation of the treaties or on judicious
2 German Foreign Minister, Joschka Fischer, ‘From Confederacy to Federation: Thoughts
on the Finality of European Integration’ (2000) in C. Joerges, Y. Mény, and J.H.H. Weiler (eds); also, https://www.auswaertiges-amt.de/2_aktuel/index.htm). This speech reignited interest in the constitutional development of the EU, which has been pertinent in the context of EI since the 1950s at least. See generally, D. McKay, Federalism and European Union: A Political Economy Perspective (1999) Oxford University Press. While focusing on the constitutional implications of the TEU, which McKay describes as ‘close to the equivalent of the deliberations of the Founding Fathers of the United States at Philadelphia between 1787 and 1788’ (Federalism and European Union, Preface), McKay provides an extensive account of the early period of EI (from 1945) and in particular the uneven development of the federal idea: see McKay, Federalism and European Union, pp. 37-67.
