CONCLUDING REMARKS: THE CONSTITUTIONAL TREATY IS DEAD, LONG LIVE EUROPEAN CONSTITUTIONALISM
[Chapter from Finn Laursen, ed., The Rise and Fall of the Constitutional Treaty, Nijhoff, 2008]
The Constitutional Treaty died when the French and Dutch electorates voted 'no' to ratification in 2005. The death was formally announced by the Member States in June 2007 when it was decided to drop efforts to resuscitate the Constitution and instead negotiate another treaty called a Reform Treaty. Although the Reform Treaty will include most of the institutional innovations of the Constitutional Treaty all references to 'Constitution' have been dropped. So have references to symbols of constitutionalism.
The constitutionalist rhetoric had backfired. The rhetoric had made it sound as if the proposed treaty was more than it was. After all it was still a treaty among sovereign states. It was not a real constitution of a state. The Member States remained the 'masters of the treaty.' Had it been ratified future changes would still have required unanimity.
The term 'constitution' is not well-defined. It has different meanings in different time periods and in different countries. But normally it refers to the organisation of a government and it implies the existence of restraints upon that government. Such restraints can exist through a division of powers among legislative, executive and judicial authorities as advocated by Charles-Louis de Montesquieu. Restraints can also be introduced by a vertical division of powers between different levels of government as we find in federal states. The famous US checks-and-balances would be a good example of a constitutional arrangement. Stipulations about individual rights also put restraints on governments (Friedrich, 1968).
The moment we say 'government' we tend to think of 'states.' But the EU is not a state. It is an intergovernmental organisation of a special kind. By 'pooling' and 'delegating' certain powers to common institutions the Member States have created a governance system that is unique. Some decisions in the Council of Ministers can be made by a qualified majority vote (QMV). The Community institutions, first of all the Commission and the European Court of Justice (ECJ), have certain autonomy. EU institutions have supra-national powers, not found in other international organisations.
This sui generis nature of the EU makes it difficult to use the concepts when we study national governments or states. Still, the supra-national aspects of the EU give it state-like features, and the EU has a system of governance with many built-in restraints. As such you can argue that it already has a constitution.