ABSTRACT
Having examined the pivotal contribution of the ECJ towards the construction of a legal polity, it is important to now examine the context within which this development occurred. An analysis purporting to achieve a comprehensive understanding of what the EU currently represents and ‘how it got there’ would be meaningless without an historical and institutional context. Accordingly, consideration is given in this chapter to EU constitutional dynamics: specifically to the interactions of the political institutions and actors; and to the vital roles played by each of them in the constitutionalisation process. This chapter provides analysis of key institutional texts and proposals relating to the EU’s constitutional development and employs this analysis to the attainment of a detailed understanding of the EU’s status as a multifarious supranational federation. By examining the process of transformation from social norms to legal norms, particularly those that guide the practices and processes of decision-making or governance in the EU, further insight into the EU’s ideational and normative development towards democratisation is gained. Introduction The EU actors, including the Member States, have to date shown varying degrees of sympathy and support for the constitutionalisation of the EU, occasionally paying lip service to the theme of constitutional construction. The ECJ has in the name of l’effet utile or effectiveness established a federal constitutional order, in which the foundational treaties, as amended, constitute the constitutional charter of the EC. The Commission of the European Communities (hereinafter ‘the Commission’), perhaps for fear of rebuke from Member States opposed to political union, is often careful in its expression of support for a federal union, but its zeal for this ideal is never far from the surface in its public forays on the topic. The Member States themselves have traditionally not agreed on the question of political union and indeed have not always been internally consistent on this issue. For its part, the European Parliament (EP) has repeatedly expressed support for a union founded on federal structures with limited but genuine powers and fully developed democratic institutions. The stage has therefore been set for an interesting institutional dynamic with questions of ‘polity’ and ‘multi-level governance’ the foci of an emerging discourse. This chapter will consider the inter-institutional dynamics guiding EU constitutional change. It will examine key institutional output and situate specific
instruments within a wider historical and constitutional context. Such an approach owes much to Walker’s insight on the Commission White Paper on Governance:
As it matured, the White Paper exercise became clearly and explicitly linked with a broader constitutional process organised around the axis of the post-Nice agenda. So, the White Paper need not, and should not, be evaluated as a definitive or even a lasting contribution to the contemporary debate on institutional reform, but merely as an episode within, and contribution to, an extended constitutional narrative.2
