La constitutionnalisation de l'ordre juridique communautaire, un exemple concret: La Charte des droits fondamentaux de l'Union européenne de l'an 2000

Abstract

The European Communities were created by treaties negotiated and approved by each Member State and subsequently modified according to procedures set out in those same treaties. Therefore, from the perspective of the legal instrument employed for its creation, the European Union is perfectly similar to a classic intergovernmental organisation. However, when we consider the legal nature of the European Union; its functions, purposes and structure; and the relations between the European legal order and the legal orders of the Member States, it is clear that the process of European integration has moved beyond the objectives of a ‘classic’ international organisation and is assuming constitutional traits. The ensuing convergence of constitutional and intergovernmental elements in the European legal order is the topic of analysis in the present article, which takes as its point of departure an event of great impact within the European framework: the elaboration and proclamation of the Charter of Fundamental Rights of the European Union by the EU conference named ‘Convention for the Elaboration of the Charter of Rights of the European Union’ in 2000. After a progressive development at an informal level in the past decades, the ‘Convention for the Elaboration of the Charter of Rights of the European Union’ has demonstrated that it is possible to effectuate also a degree of formal constitutionalisation of the European legal order. The Convention has demonstrated this in two ways: first, it has adopted the Charter, a legal text establishing a normative regime with constitutional aspects; and second, it has done so by making use – for the first time in the European Union history – of a negotiating and decision-making procedure with decidedly constitutional traits. The content and structure of the Charter doubtlessly deserve a detailed study. This article, however, focusses specifically on the purpose and significance of the Convention for the process of constitutionalisation of the European legal order in general. The introduction of a new instrument (or, procedure senso latu) for the adoption and modification of treaties, which was at the heart of the Convention, has brought about a qualitative change in the method of discussion, negotiation and decision making in the European Union. It may serve as a model for the creation of future texts with legal and political relevance in the European legal order. Its success, embodied by the newly proclaimed Charter of Fundamental Rights of the European Union, has paved the way for an agreement on certain politically sensitive goals in the paramount European conference of the ‘Convention on the future of Europe’ that is currently in process, and it has strengthened the chances of the European Constitution project that is to be presented at the EU Intergovernmental Conference of 2004. As is argued in the present article, at the present stage of the integration process the European Union needs to enter a next stage of constitutional development. The ‘Convention on the Future of Europe’ has accepted the challenge to further transform the institutional structure of the European Union into a constitutional one. It is not the first time that such an endeavour is undertaken, but at present – in the proximity of a new enlargement of the Union toward Eastern and Central Europe – this transformation has become absolutely indispensable. The decision-making process exemplified by the ‘Convention for the Elaboration of the Charter of Rights of the European Union’ could serve as a yardstick and a model for bringing about such a development, or transformation, in a coherent and sustainable way – a process that could ultimately lead to the proclamation of a real European Constitution in both the formal and the material sense.