Affirming and Refining European Constitutionalism: Towards the Establishment of the First Constitution for the European Union

Abstract

Joschka Fischer's well-known speech at the Humboldt University on 12 May 2000 marked the start of a wide-ranging and unprecedented debate on the future of Europe. Subsequent developments have led us from the Nice and Laeken declarations to the establishment of a 105-member Convention on the future of Europe. This Convention produced a 'Draft Treaty establishing a Constitution for Europe' that was presented to the European Council in Rome on 18 July 2003 as subject of discussion for the following IGC. Whereas disagreements on the content of the constitution soon emerged, the constitutional terminology itself seems, remarkably enough, by and large accepted on the European political level. In this paper it will be argued that, as is supported by many, the present EU already is endowed with its own constitution. The constitutional process is thus perceived not as intending to create a constitution for Europe, but as intending to bring about a new, modified, different and more explicit form of constitution for Europe. Moreover, it will be asserted that the elaboration of a European constitution is a useful and desirable exercise, signifying an affirmation and refinement of already existing European constitutionalism. This argument is subject to much and heavy scholarly criticism, such as the 'no demos' thesis and the various critiques that point to the alleged problematic relation between the enactment of a formal constitution and European political community and identity. These critical positions will be closely looked at in this paper and the author will try to provide convincing counter-arguments against them.