ABSTRACT
Answering such questions requires an analysis of the present constitutional shape of the Union. Analytical clarity is highly needed. This can be partially brought about by means of distinguishing, as I do in the opening section, between the formal, the material and the normative conceptions of the constitution.2 The three conceptions are analytically complementary, although it is also argued that, at the end of the day, the normative conception of the constitution is the supreme one. On such a basis, an account of the present constitutional state of the European legal order is put forward in the following section; it is considered whether the Union has a constitution in the material, formal and normative senses. The conclusion is that the Union does not have such a thing as a complete formal constitution, and that the Union does not have a democratic constitution, that is, a democratic constitution in a relevant sense. This is so despite the fact that we can make reference to a basic set of legal materials which are interpreted by courts as the material constitution of Community law, both in a structural and in a substantial sense. This, and nothing else, is what is meant when it is said that the European Communities have a constitution.3 Having said that, consider the
different rationales for writing a European constitution. Finally, the conclusions aim at clarifying the extent to which the Laeken process can be expected to result in the affirmation of a European constitution in a normative sense. It is argued that the Laeken process is best understood as an attempt at laying the ground for an eventual democratic constitution for Europe, which could only result from the actual exercise of popular sovereignty by European citizens and not as a constitution-making process in a normative sense.
