Introduction

This book studies the constitutional development of the European Union (EU). It critically examines the current constitutional arrangements of the EU and the challenges confronting its further development: the effects of EU membership and institutions on EU constitution building; the impediments to constitutionalisation; the need for a formal, documentary constitution and its relationship to legitimacy. It presents an analysis of the dynamic institutional interactions, processes and practices of EU governance that have generated constitutional change. This book argues that EU constitutional development is a consequence of such interinstitutional processes and practices, which transform Member State interests and preferences towards constitutionalisation. The book formulates a theoretical framework for understanding the EU’s constitutional development, against which the substantive constitutional questions presented in this book are tested. The theoretical framework describes the effects of Europeanisation on domestic institutional systems by their capacity to promote convergence and transform domestic values, interests and preferences in favour of constitutionalisation. The framework draws on aspects of social constructivism and substantive theories of European integration (EI), such as federalism and neofunctionalism, to further explain the constitutional development of the EU. In developing this theoretical framework, I argue that tracing the processes and effects of transformation to which the EU is subject brings to light the EU’s constitutional identity and points to the future direction of its constitution. This book aims to present a detailed account of the EU’s specific constitutional attributes and its constitutional orientation. There is merit in establishing the basic character of a constitution to properly anchor discussion of its possible reshaping.1 I argue that characterisation is a precondition to the proper assessment of the EU’s constitutional prospects. There is a lack of consensus among the Member States and analysts as to how to characterise the EU in its current form, much less what it should become. The point of departure in this book, drawing on an observation by Maduro, is that the discourse dominating the construction of Community law and its relation with national legal orders is a constitutional discourse2 since ‘the operation and effects’ of the European Community (EC) Treaty ‘closely resemble

1 B. Galligan, A Federal Republic: Australia’s Constitutional System of Government

those of a Constitution.’ Thus, the book explores the tension between the legal patrimony of the EU – a putative constitution – and the perceived need for a constitution. There is an indeterminacy of meaning associated with key terms such as ‘constitution’, ‘federalism’ and ‘polity’, though the EU is increasingly perceived as a federal type polity.4 Disagreements over basic terminology and the EU’s uncertain constitutional identity are two factors that have clouded the constitutional landscape and hindered the emergence of an informed public debate on how the EU should develop. Another contributing factor has been the inability or nonpreparedness of scholars from diverse disciplines to share and profit from the insights and findings of their scholarly research. I argue that the elemental disagreement as to identity, the indeterminacy of terminology and the prevalence of single-discipline research on the EU have contributed to the entrenchment of a partial understanding of the EU. This problem has been exacerbated by a tendency to examine the EU against the analytical backdrop of the nation state, even when EU and state institutional functions, processes and practices clearly differ. The persistence of ‘democratic deficit’ and ‘legitimacy deficit’ discourse against an exclusively statist benchmark is symptomatic of theoretical incapacity or sclerosis. The gradual increase of regulatory and policy output emanating from the European level of governance and a prevailing sense of the irreversibility of Europeanisation are transforming domestic politics and impacting upon European consciousness. These changes foreshadow increased interaction between EU governing structures and the citizen. However, doubt remains as to whether increased EU activity will produce direct engagement between supranational institutions and citizen or whether the national states will continue to mediate between them. The outcome will influence citizens’ perceptions of the EU and whether or not citizens ultimately identify with a supranational polity.5 For all the uncertainty surrounding EI, it is generally (and possibly correctly) believed by scholars that the legitimacy of EU governance will continue to elude the EU as long as its authority is derived from the Member States rather than its citizens. Central to the constitutional discourse, therefore, is the question of legitimacy through, inter alia, the promotion of democracy – ostensibly a matter of institutional or constitutional design, but clearly informed by ideational factors. While this line of reasoning invites acceptance of the proposition that it is possible to transform the EU into a democracy beyond the élite level, the proposition is by no means free from doubt.