At this point, the attempts to foster the process of “constitutionalizing”
the European Union which have lastly culminated in the so far futile try of the Constitutional Treaty merit some further attention. It was
56 See also D. Thym (note 7), 148.
57 Cf. D. Thym (note 7), 150 et seq. concerning legal constitutionalism and 162 et seq. concerning democratic constitutionalism.
58 ECJ, 15 July 1964 (6/64, Costa / E.N.E.L.), 1964, 1253, 1270 (German edition).; cf. D. Thym (note 7), 150 et seq.; C. Koenig/A. Haratsch (note 2), no.
57, 122.
59 ECJ, 23 April 1986 (294/83, Les Verts), no. 23; ECJ, opinion 1/91, no. 21;
German Constitutional Court, BVerfGE 89, 155, at 204; A. von Bogdandy, Eu- ropọische Prinzipienlehre, in: A. von Bogdandy, Europọisches Verfassungsrecht, 2003, 149, at 166 et seq.; I. Pernice (note 9), 5 et seq.
60 German Constitutional Court, BVerfGE 89, 155, at 185; C. Koenig (note 7), 8; D. Thym (note 7), 163; D. Grimm (note 2), 586; P.-C. Müller-Graff (note 1), 24; R. Streinz (note 3), 41 – they all identify a necessary dual legitimation of European public power.
stated above that the Constitutional Treaty – and this would be true for any other attempt in this regard as well – could itself not resolve the problem of democratic legitimation and not overcome the lack of dem- ocratic constitutionalism, because without a European people the ne- cessity of “dual” legitimation at both the European and the national levels will persist. But can there nevertheless be a case for pushing ahead with the project of a European Constitution? I tend to argue that there is one.
Three main arguments speak in favour of a formal constitutionalisation of the European Union, be it through the already existing Constitu- tional Treaty or otherwise. The first and less far-reaching one builds on the assumption that is also part of the core of this article: that the cur- rent European treaty system already possesses constitutional character from a functional perspective.61 But the situation created by this system has meanwhile led to a widespread discomfort which could be over- come through a new constitutional project. The primary law embodied in the Treaties has in the course of time continuously expanded and si- multaneously become more and more intricate and intransparent. Be- sides the fundamental principles and the necessary institutional and procedural regulations, it abounds with less important topics, which de- spite their minor relevance are spelled out in so much detail that law- yers and non-lawyers alike are hardly able to figure out the pivotal pro- visions, unless they have developed a real specialization in European law.62 That makes for one of the worst failures a constitution can be ac- cused of: it is impossible for the people to identify with this conglomer- ate of documents.63 The creation of a new constitutional instrument, which would bring the legal cornerstones of the Union together – and be itself reduced to them –, could therefore essentially enhance the transparency of the European system, sharpen public consciousness as to the importance and the unique character of the European project and strengthen its power to convince the European citizens. Unfortunately, the Constitutional Treaty, albeit certainly a major improvement com- pared with the topical situation, falls itself short of this goal – and this shortcoming might at least be part of the explanation why it has failed in popular referenda.
61 M. Mửstl (note 21), 19; R. Zippelius (note 36), 58; P. Huber (note 22), 199;
P.-C. Müller-Graff (note 1), 21 et seq. D. Tsatsos (note 9), 29 at least discerns elements of constitutional quality in the Treaties.
62 D. Tsatsos (note 9), 29; T. Oppermann (note 53), 2; D. Thym (note 7), 178.
63 T. Oppermann (note 53), 2.
The second idea behind the move for a European Constitution stems from the original vision of European integration and thus is far more ambitious: it aims at a real act of constitution-making precisely in order to let the Union make another qualitative leap forward:64 in the direc- tion of a federal state or at least a quasi-federal system, entailing the hope that such a quasi-revolutionary act of “creating Europe anew”
would also overcome the persisting deficits of the Union, for instance with regard to its democratic legitimation mentioned above, a codified protection of human rights and comprehensive judicial review of all possible actions of the Union, especially those undertaken outside the realm of the existing European Community. And again, the Constitu- tional Treaty would certainly contribute to overcome these deficits but fall short of reaching the ultimate goal – to cite a popular saying in Germany, it is “neither fish nor meat”.
The third argument starts from a very different point: from the undis- puted analytical determination that the European Union – despite its lack of “competence-competency” noted above – has meanwhile ac- quired so many competences and so much power which to a large ex- tent affects the European citizens directly, that it really comes close to a federal state, at least with regard to its practical impact on the life of European individuals.65 And since it is one of the pre-eminent tasks of any constitution to order and restrain this kind of public power, the Union can be said to be not only capable of having a constitution but even in a pressing need of one.66 The European integration has pro- ceeded to a stage where the political entity in which we live cannot be understood from the perspective of the member states and their consti- tutions only. Especially in Germany, we are now confronted with a
“multi-level system” of political organization, consisting of the sixteen states which form the Federal Republic (“Bundeslaender”), the Federal Republic of Germany itself and the European Union. It would there-
64 Cf. M. Mửstl (note 21), 18; G. Hirsch, Nizza: Ende einer Etappe, Beginn einer Epoche?, NJW 2001, 2677, 2678; M. Stolleis, Europa nach Nizza. Die hi- storische Dimension, NJW 2002, 1022 et seq.
65 Cf. e.g. C. Koenig/A. Haratsch (note 2), no. 284 et seq. on the direct effect of directives.
66 P.-C. Müller-Graff (note 1), 16, at 21 states that, because the European Union exercises public authority, there is a coercive need for legitimation and control of that authority. T. Oppermann (note 53), 2 declares the current situa- tion at the European level “the worst sort of constitution possible”; cf. also M.
Mửstl (note 21), 19 et seq.
fore be just consequent to devise and to speak of a “multi-level consti- tutional system” as well, where every level of political action corre- sponds with a layer of constitutional law of its own, i.e. in the German case: the states with their constitutions, the Federal Republic with its Basic Law, and the European Union with its founding treaties – or a new Constitutional Treaty, respectively.67