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European citizens might soonget a Constitution or rather aproxy, a treaty instituting a Con-stitution which, however, wouldonly be revised in the future byunanimity. This ambiguitymight be seen as a serious flaw,and indeed is one. Those whosee the glass as half empty willthink so. Others who considerthe glass as half full will remindus of the permanent features ofthe EU: compromise, uncertain-ty, ambiguity, unfinished state ofaffairs are part of the Union'sgenetic code. Formally, Euro-pean citizens will not yet have afully fleshed constitution. Sub-stantially, they already have one(even if most citizens ignore it)and the most recent progressbrought by the Convention willimprove procedures, institu-tions, division of powers, funda-mental rights and the overallclarity and transparency of thesocial contract.

However, at this stage of theconstitution-making process,many options are still open:what kind of amendments, dele-tions, additions will be intro-duced by the Intergovernmen-tal Conference? What will theattitude of European citizens beif and when invited to approve adocument still perceived – inspite of the tremendous politicalimprovement brought forwardby the convention – as a matterfor the élite?

The EUI has been, from the be-ginning of the process, an activeacademic observer, analyst andparticipant. Its involvementstarted in 1984 when AlfieroSpinelli asked the Institute'sacademics to discuss his for-ward-looking and ambitiousproject. In 1994, the SchumanCentre organised a debate onthe Herman project with themain political actors involved inthat European Parliament ini-tiative.

After this second failure of theEuropean Parliament as initia-tor and author of a fully flesheddraft of a Constitution, the EUIwas invited to embark on amore modest and low key ini-tiative. In 1996, after severalmonths of intensive work in-volving Claus-Dieter Ehler-mann as co-ordinator andArmin von Bogdandy as rap-porteur (Renaud Dehousse,Eduardo García de Enterría,Jean-Victor Louis, Yves Mény,Francis Snyder and GiuseppeTesauro members of the Work-ing Group), the Schuman Cen-

The European University Institute - Badia Fiesolana - Via dei Roccettini, 9 - I-50016 San Domenico di Fiesole (FI), Italyhttp://www.iue.it/ - e-mail: publish@iue.it - EUI Review now also at: http://www.iue.it/General/EUI-review

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The European Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3EU-Constitution: What happened to competencies? . . 6Constitutionalism in Europe 10Pandora’s Box is Open . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12The Sapir Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Minority Rights in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Neil MacCormick’s Two Hats . . . . . . . . . . . . . . . . . . . . . . . . . 20Rethinking Community Competence . . . . . . . . . . . . . . . . . 22News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Winter 2003

Focus

The EUI and the Constitutional Reformof the European Union

Inside

Inaugural session of the European Convention 28 February 2002 (from left toright) Giuliano Amato, Vice-Chairman, Valéry Giscard d'Estaing, Chairman, Jean-

Luc Dehaene, Vice-Chairman, before the official opening of the Convention

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tre presented the European Parliament with a so-called “A Unified and Simplified Model of the Euro-pean Community Treaties and the Treaty on Euro-pean Union in Just One Treaty”. The cumbersomeand contorted title of the project is telling of thetimes. In 1996, it would have been foolish and coun-terproductive to pronounce what Philippe Schmit-

ter1 calls the “F Word” – in his case Federalism, inour case ... Constitution.Three years later, on the basis of this preliminary re-search, a new study was requested by the Commis-sion institutionnelle of the European Parliament inorder “to envisage possible options for bringing theEuropean treaties, through the next step of institu-tional reform, closer to the shape of a European con-stitution”. The process was going one step furtherand was more ambitious: not yet a constitution, butsomething of the kind. This time the team was led byGiuliano Amato (then recently appointed professorin the Law Department) and Hervé Bribosia (a for-mer EUI researcher) was acting as rapporteur.2

At the time, some governments were insisting thatthe future (and it was said last) treaty supposed todeal with the famous “leftovers” of the AmsterdamTreaty before the Union's enlargement should focuson a narrowly defined agenda. Other Governments(very few) and the Commission were anxious to givemore scope to the future CIG. At the request of theCommission, a “Groupe des Sages” chaired by Jean-Luc Dehaene made a few suggestions in a last at-tempt to broaden the CIG agenda. In spite of its verymoderate and modest suggestions, very few weretaken up. However, the Commission was able to takeup one recommendation related to the consolidationand simplification of the treaties to be realised by theEUI in the light of its previous studies.

The Robert Schuman Centre was again asked to deep-en and improve its previous proposals in January

2000. A preliminary report was presented in March,and two final reports concerning the Reorganisationof the Treaties and the procedures of Treaties revisionwere submitted in May and July 2000 respectively.

This time the composition of the team was slightlychanged, but the same spirit was animating thegroup. As Giuliano Amato had been called back topolitics (he had been appointed Minister for Admin-istrative Reforms) the new team was chaired by Claus-Dieter Ehlermann and myself. Hervé Bribosia wasmore involved than ever as a dedicated rapporteur3.The report was warmly welcomed, but the Commis-sion failed to convince the Member States to broad-en their limited ambitions. They were convinced – inparticular the French Presidency – that a more limit-ed agenda would enhance the success of the Inter-governmental Conference. We all know the se-quences of the story, the rather poor results reachedin Nice and the consolation prize of the final decla-ration: some further goals should be taken up again,and in particular the consolidation and the simplifi-cation of the Treaties should be an objective for thenear future.

At that stage, the problem was no longer an academ-ic one, but a political one. The academics could re-turn to their favourite occupation: analysing, debat-ing, arguing, and criticising the formidable work thatthe Convention was engaged in under the combinedleadership of Valéry Giscard d'Estaing, GiulianoAmato and Jean-Luc Dehaene.

During all this period an impressive production ofworks on problems of governance, institutions, con-stitution has been developed by researchers and pro-fessors of the Institute. A selected list of works is at-tached in this special issue. It is not just a testimonyof past achievements; it is also an invitation to debateand to look forward. There is still a lot to say, to writeand to comment!

YVES MÉNY

1 Philippe Schmitter, ‘Democracy in Europe and Europe'sDemocratization in Making Sense of the European Union’,Journal of Democracy, Vol. 14, No. 4, October 2003 p. 71 -85 2 The members were Stefano Bartolini, Renaud Dehousse,Bruno de Witte, Luis Díez-Picazo, Claus-Dieter Ehler-mann, Yves Mény, Christoph Schmid, Philippe Schmitter,Armin von Bogdandy, Joseph H. H. Weiler.3 The group was composed of Grainne de Burca, AlanDashwood, Renaud Dehousse, Bruno de Witte, Luis Díez-Picazo, Jean-Victor Louis, Francis Snyder, Antonio Tiz-zano, Armin von Bogdandy and Jacques Ziller

Hervé Bribosia, Yves Mény, Romano Prodi and Michel Barnieron the occasion of the presentation of the report

“A Basic Treaty for the European Union’on 15 May 2000 in Brussels

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This year's Forum on “Constitutionalism in Europe”could hardly have been more timely. Indeed, giventhe move towards constitutionalization of the Euro-pean Union (EU) and the effects of the emergence ofan EU ‘documentary’ constitution (portended in theConvention on the Future of Europe and the DraftConstitutional Treaty) on the one hand and EU en-largement on the other, one is tempted to say that itis a case of the right time and certainly, given theRobert Schuman Centre’s distinctive multi-discipli-nary profile, the right place.

In my role as research fellow and scientific co-ordi-nator, I have been privileged to witness a veritablemicrocosm of intellectual activity which has beengenerated by the Forum seminars. The participationof the wider research community from across the De-partments of the EUI has also meant that the Forumhas greatly benefitted from a large and exceptionallyqualified pool of multi-disciplinary researcherswhich it has at its disposal annually. Indeed, it hasbeen able to draw from a research community whichis unique to the extent that it is multi-national, multi-lingual and multi-disciplinary. This level of diversityhas underpinned many of the discussions which havetaken place both during and in response to theForum seminars.

Thus, for example, the seminars which have takenplace during the first term under the aegis of thetheme The Idea and the Dynamics of the EuropeanConstitution: Historical and Theoretical Perspectiveshave highlighted the degree to which the notions ofconstitutionalism and constitution-making are usedin a variety of ways in the European Union, which isa consequence of the diverse nature of the legal sys-tems and cultures of the Member States, to be fur-ther enriched by enlargement. It has been interestingto observe the extent to which many of the observa-tions which have been made during the Forum sem-inars concerning the sui generis nature of Constitu-tionalism in Europe arise in practice, both at thelevel of policy-making (a case in point is the currentIntergovernmental Conference (IGC)), and in thevarious spheres of law and modes of governanceacross the Union.

The EUI and the Robert Schuman Centre in partic-ular provide considerable opportunities for Forummembers to interact with European policy makers.Thus, talks by participants of the Convention on theFuture of Europe, notably Sir John Kerr, Sir Neil

MacCormick and Hervé Bribosia have offeredunique insights from a number of spheres within theConvention.

Moreover, a number of parallel activities, such as, forexample, the workshop organised by Professor Woj-ciech Sadurski on Implications of Enlargement for theRule of Law and Constitutionalism in Post-Commu-nist Legal Orders (November 28/29, 2003), a work-shop organised by Susan Millns (Marie Curie Fel-low/RSCAS) and myself on Values in the Constitu-tion of Europe (December 12/13, 2003) and a con-ference organised by Professor Michael Keating onNations, Minorities and European Integration (May7/8, 2004) have provided a number of contexts with-in which Forum discussions can be disseminated toand informed by the wider international academiccommunity.

The part of the Forum seminar series scheduled totake place in the first half of 2004 will focus on spe-cific policy fields under the respective themes ofRights and Citizenship in an Enlarging Europe andRegional and Cultural Diversity. Seminars will ad-dress inter alia EU citizenship, the notion of equalityin the European Constitution, vertical and horizon-tal decentralization, minority rights in the EU andlinguistic diversity. The Forum thus seeks to achieveits aim of contributing to discussion both within andoutwith academe of issues of European constitution-alism.

MIRIAM AZIZ

Research Fellow and Scientific Co-Ordinator of theEuropean Forum, “Constitutionalism in Europe”

The European Forum 2003-04“Constitutionalism in Europe”

at the Robert Schuman Centre for Advanced Studies at the EUI

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It has been a unique experience, and a great privilegeo have been at the heart of the Convention process, asone of the ten or so draftsmen (‘rédacteur’ in French)in the Secretariat of the European Convention whichpaved the way for the Constitution for Europe.

The whole story started for me at the RSCAS where Itwice acted as a rapporteur to draft reports commis-sioned by the European Parliament and the EuropeanCommission on how to simplify and constitutionalizethe treaties. Later, I was hired by the European Com-mission in view of the forthcoming Convention, fromwhich I was seconded a few months later to the Sec-retariat of the Convention. Valery Giscard d’Estaing(VGE), the president of the Convention himself itseems took the final decision in choosing the drafts-men after individual interviews. No doubt my previ-ous working experience with Giuliano Amato at theEUI had played in my favour.

One of the greatest satisfactions in the end was theworking experience with some very competent andstimulating colleagues coming from the administra-tion of the institutions and from some national diplo-matic services. In spite of diverse origins and areas ofexpertise, and some conceptual divergences on theconstitutional project, a real team spirit developed.This was mainly due to our General Secretary, SirJohn Kerr, former head of the UK Foreign Office,who organised a real collective way of working.

Most background notes and draft articles, and anysubstantive documents to be circulated to the Prae-sidium and then to the Convention were prepared byone of us, and discussed in the group. The Conventionmethod, whereby each stance had to be sustained byconvincing arguments, applied to the group of drafts-men as well, although from time to time Sir John Kerrplayed his ‘golden card’, as he said. To be honest, ittook some time for the Secretariat to find its full speedas a team. There were some mutual suspicion at first(in my case, being a Belgian, coming from academiaand the Commission was not necessarily an advantageto be ‘credible’), and it took some time for the Gener-al Secretary to free himself from some external influ-ences and to rely fully on his team. The way he caughtup in all matters (he had been out of EU businesssince the treaty of Maastricht) and eventually agreedto open up in the intellectual exchanges amongst us,was to leave a long-lasting impression, just as the wayhe managed the strategy of the whole enterprise. Hewas also assisted by a very efficient Italian woman, hisdeputy, in running the very demanding logistic of theConvention. The tasks of the Secretariat followed (orperhaps triggered) the rhythms of the Convention:

background and reflection notes during the listeningphase, management of the working groups and circlesof discussion during the study phase (including draft-ing the final reports under the direction of the chair-man, who was always a member of the Praesidium),drafting the articles of the Constitution, their com-mentaries, and compiling and summing up thousandsof amendments in the proposal phase.

From time to time, VGE organised private meetingsin Brussels with the draftsmen where he could sharehis personal feelings about the state of play of theConvention and set out the following steps for its pro-ceedings. This was also an opportunity for him to askdirectly for our opinions on certain issues or to raisetechnical questions which revealed his sharp knowl-edge in some dossiers. Moreover, VGE used to choosehimself the persons to accompany him in his many of-ficial visits to high political figures (all the present andfuture Member States have been visited by him, or byone of his vice-presidents), which would allow for amuch freer discussion. He would then always havevery specific questions to ask or messages to deliver.VGE also developed a close relationship with ourspokesman, a German diplomat, who frequently acted as a go-between between the draftsmen and him.

Each of these meetings with VGE were memorable ashe showed another aspect of himself, more intimate,and also revealed the relationship he had with hisGeneral Secretary. In spite of some appearances (e.g.the fact that they most of the time addressed eachother in their own mother tongue), they had great re-spect towards one another, and got along very wellafter a while, notably as they had in common a greatsense of humour, and actually a quite similar one: typ-ical British understatement and irony on one side,false naivety and pince sans rire on the other. Their in-teraction, just as the interaction between them and thedifferent personalities and political background ofGiuliano Amato and Jean-Luc Dehaene, created avery positive and interesting dynamic accounting forthe success of the Convention.

The Praesidium meetings were held in rather restrict-ed sessions as VGE considered it as a political forumwhere all the members should speak as freely and per-sonally as possible. Later on, one legal adviser permember was admitted into the room as the drafting ofarticles started. The restriction also applied to theConvention Secretariat at first, the General Secretaryhimself sitting in the room but not at the Praesidiumtable. This changed rapidly, as he became a crucialactor in running, without ever chairing, the workingsof the Praesidium, be it only due to the ever-growing

A Few Impressions of a rédacteurin the European Convention Secretariat

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workload. As for thedraftsmen, their pres-ence was requested onlywhen they were incharge of the matterdealt with. But the rulebecame quite flexible,especially in the endwhen things went soquickly and everybodyhad to keep in touchwith all the issues andwith the global picture.

A lot could be said about the workings of the Praesid-ium and possible improvements. In spite of the re-stricted sessions, it took some time for its members togain each other’s trust, and secrecy of its workingproved to be difficult. One good example is the so-called ‘skeleton’ of the Constitution: the first time itwas shown and discussed in the Praesidium, only alimited number of numbered copies was handed inand then taken back. The debates on the first articlesregarding the division of competencies were long andinconclusive (partly due the Commission’s divergingapproach on the matter). In the last months, consen-sus was more and more difficult to reach and tensionswere frequent. The last two or three meetings, by con-trast, were very fruitful in getting things done, as thepresidency of the Praesidium was less scrupulousabout paying attention to the minority view…

Some of the difficulties encountered in the Praesidi-um can be explained by intensive working rhythms,amounting to a full-time job in the last months, andthe technical expertise required. Another problem, re-garding the Convention, concerned the lack of ‘repre-sentativeness’ of the members of the Praesidium as re-gards the components they were supposed to repre-sent (national governments, national parliaments, Eu-ropean Commission, European Parliament). It wasquite remarkable, for example, to note that the con-ventionnel who often spoke in the name of the na-tional parliaments’ component was not one of the twositting in the Praesidium. Likewise, the Commission’srepresentatives were not fully at ease when the Com-mission released by surprise a fully-fledged draft con-stitution, consolidating all the treaties, called ‘Pene-lope’. And how can we deny that the three memberssupposed to represent the governments were at timesrepresenting rather their own views? Moreover, someMember States were ‘represented’ neither in the Prae-sidium, nor in the Secretariat, which accounts for theirreluctance now to endorse the outcome of the Con-vention in the inter-governmental conference.

At the outset VGE tended to downplay the ‘represen-tativness’ of the members of the Convention, and torely more on their personal conscience, in order toavoid over-rigid mandates of negotiation. This is whythe conventionnels were seated, not in their compo-

nents, but in alphabetical order. In the end game,however, notably regarding the institutional compro-mise, the components proved indispensable in reach-ing a consensus, especially that of the national parlia-ments, as much as the transnational political parties.

Nonetheless, the Convention was good machinery formaking people meet, talk, and think twice on issuesrelated to the purpose and the future of the EU. Theprocess included fully for the first time the new Mem-ber States. Furthermore, the Convention has deliv-ered a product which was not at all expected at theoutset, and indeed opposed by some, i.e. one singletreaty consolidating and replacing all the existingtreaties, starting with a constitutional part followed bythe charter of fundamental rights. In that respect, theEUI reports on the reorganisation of the treaties havebeen influential as they have demonstrated the feasi-bility of such undertaking, and paved the way for it.The simplification of the treaties also includes an at-tempt to lay own categories and principles regardingthe division of competences between the EU and itsMember States. The rationalisation of procedures andinstruments, for which Giuliano Amato has played amajor role, has been underpinned by a revolutionaryapproach (for international organisation at least), con-sisting in defining the legal acts according to the deci-sion-making procedures, and thus their authors,rather than just their legal effects, making thereby a di-rect link with the legitimacy of the Union action.

All that will be preserved by the ongoing inter-gov-ernmental conference. At the moment of writing , thetechnical group of the IGC is still very busy tidying upthe Constitution and going through all the protocols,accession treaties and declarations in order to retainand consolidate the provisions of enduring relevanceso that all the existing treaties can eventually be abro-gated and replaced by the Constitution. The same cannot be said for the more substantive outcome of theConvention, in particular the ‘institutional compro-mise’ which might have been better and more con-vincing, had the Convention method been fully ap-plied to those sensitive issues. But the forthcomingcompromise in the IGC, going back to the Nice Treatyor even the Amsterdam arrangements is unlikely to bebetter…

Will another Convention ever be convened to devise atrue and rational political system at EU level, or morespecifically to revise the treaty amendment procedureitself? Although the Constitution will allow for anoth-er Convention, I have my doubts that 25 or more gov-ernments would make such an ‘unconscious’ leaponce again, unless the national parliaments, if actingcollectively, wake up to their enormous potential inthe constitution-making of the Union, probably morethan in the legislative process as provided for in theConstitution.

HERVÉ BRIBOSIA

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I.The convention’s reshape of the EU is more thanbasic principles. It redesigns and redefines the EU inorder to adapt it to the new needs of the 21st centu-ry, for instance to the institutional and political ne-cessities of an EU with soon 25 and more MemberStates. After the defeat of intergovernmental diplo-matic conferences to modernise the EU, the conven-tion method succeeded to produce a text that makesthe EU more flexible, more democratic and moretransparent for the citizen.

The enlarged EU will also need to concentrate moreon the core issues. With 25 Member States, the EUbecomes even more diverse. It needs to leave more"marge de manoeuvre" to the Member States. Re-gional and local particularities can best be respectedon the lower level. The EU should not seek for a sayin every issue. The convention was called to deliversolutions to these problems. So, what happened toEU-competencies ?

There has been a considerable widening of compe-tencies in the young history of the EU. The aim wasto have a set of common rules to promote economicdevelopment and welfare which creates stability andsocial security. Now, the EU has, economically andpartly politically, well developed. It does not needmore competencies just for the sake of beeing stabi-lized. Otherwise, the EU will be overburdened andwill loose its capacity to act and to react. Any addi-tional as well as the existing competencies of the EUshould pass the test of a clear added value as com-pared to national or regional action. Where we havemade the experience that European regulation is notnecessary, we should relocate it to the appropriatelevel.

II.The draft of the constitution does not fully achievethis ambitious goal. In some areas, the EU compe-tencies are even enlarged unnecessarily. The bigmerit of the draft, though, is the proclamation of theprinciples for the attribution of competencies ac-companied by procedural safeguards. They help toreduce tendencies of centralisation and thus con-tribute to reduce euro-scepticism. However, we werenot courageous enough to retransfer competenciesto national levels where the EU-umbrella has notproven any added value.

For the first time, the competencies of the EU aresummed up in a special chapter. The principle ofconferral, according to which the EU can only act in

areas where there is an explicit competency, has beengiven constitutional rank. The scope of the compe-tencies in detail is defined in part III of the constitu-tional treaty. Unfortunately, it remains widely un-changed. Here, we even find superfluous extensionsin areas such as the co-ordination of the economic,social and employment policies. The necessarystreamlining of the articles for the common marketor the areas of social, regional and environmentalpolicies has regrettably not been made.

The principle of subsidiarity, although unchanged inits core definition, now includes the regional andlocal dimension. Article 5 protects the natiopnalidentity, the self-government of regions and local au-thorities as well as the autionomy of the churches.

The chapter on competencies lists three categories of

competencies: exclusive competencies, areas ofshared competencies and areas of supporting, coor-dinating or complementary action. This does not au-tomatically contribute to a better separation of com-petencies, but it helps to show where the EU’s focusof activities is. In this context, I would like to stressthat the scope of these competencies is not definedthrough the lists of the areas of the three competen-cies. It is only to be found within the competenciesset out in part III of the constitutional treaty. For rea-sons of clarity, it would have been preferable,though, to have all these provisions united in the firstpart.

EU-Constitution:What happened to competencies?

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Joachim Wuermeling

What happened to com

petencies?Now it is made clear that important areas such as thecommon market or agriculture are among the sharedcompetencies and not the exclusive ones. From theperspective of a Member State organised in a federalway, such as Germany for example, core competen-cies of their regional structures are listed among the“complementary actions”. Also, the wording stressesthat here we find ourselves outside the scope of com-petencies of the EU, since they are described asmerely “actions”. Legally binding acts of the EU inthese areas may not entail harmonisation of MemberStates’ laws or regulations. Even using the flexibilityclause (the former Article 308), this cannot be cir-cumvented.

Contrasting to the actual texts, the new draft con-tains various very clearly formulated guidelines oncompetencies. They endorse the principle of confer-ral. Thus, competencies not explicitly transferred tothe EU, remain within the remit of the MemberStates.

Until now, the general political aims of the EU haveserved as a basis for EU action. We need a better sep-aration of political objectives on the one side and theprovisions that confer competencies on the other.The border line has been drawn in the draft in thesense that these objectives shall be only pursued"depending on the extent to which the relevant com-petencies are attributed to the Union".

Another success is that the Convention resisted tothe temptation of establishing the principle of opencoordination in the draft. Such an open coordinationwould have been possible also outside the areas ofthe EU`s competencies. This would have completelyundermined the principle of conferral.

But the best order of competencies remains a frag-ment without the necessary safeguards to assure itsrespect. This is why the CDU/CSU was advocatingthe case for the implementation of procedural safe-guards for the respect of the competencies. Ideally,they should have included the right of action beforethe ECJ for national parliaments, the Committee ofRegions and the national regions with legislativepower on grounds of violation of the separation ofcompetencies. Due to the structural differences be-tween the Member States, some are centralist othersfederal, it was impossible to reach an agreement forthe national regions. Compared to the actual situa-tion, we have made a big step forward in granting theright for action to the national parliaments and theCommittee of Regions. This, however, is limited tothe grounds of violation of the principle of sub-sidiarity. Indirectly, this includes the question ofcompetencies since any action in accordance withthe principle of subsidiarity would also need to bewithin the remit of the EU`s competencies.

Another new idea of the Convention is the introduc-tion of the objection on grounds of subsidiarity fornational parliaments at the beginning of the legisla-tive procedure. Once the Commission has made alegislative proposal, national parliaments have thepossibility to object the proposal for violation of theprinciple of subsidiarity. This is the first time nation-al parliaments see themselves formally integrated inthe EU’s legislative procedure. But although this ob-jection cannot stop the legislative procedure, it hasnevertheless a considerable political effect. The rightto take action before the ECJ once the legislative actis passed can reinforce the political weight of thisprocedure.

Apart from procedural safeguards and subsidiarity,which help to contain the uncontrolled widening ofcompetencies, the flexibilty clause of ex Article 308merits particular attention. Initially designed to en-able the proper development of the EU in areas thatby accident have not been fully covered by a specificcompetence, it growingly opened the door to uncon-trollable Community action. The Convention did notwant to abandon this flexibility tool. Ideally, anypiece of legislation based on ex Article 308 should beonly of a limited term of application until a regularcorrespondend provision has been created to closethis "competence-whole". The results of the Con-vention have been less consequent. Its scope of ap-plication has even been enlarged beyond the area ofthe Common Market. On the other hand, the use ofthe flexibility clause would need unanimity amongsoon 25 Member States and the approval of teh Eu-ropean Parliament. This ensures, that the flexibiltyclause is used only where a EU action is needed.

III.Reviewing the competencies and a better concentra-tion on the EU`s core activities, together with clearerprovisions would be a big step forward. There is abetter separation of competencies in the Conven-tion’s draft. Regrettably, though, there has not beenreal progress made in the various specific provisionson competencies. Nevertheless, the Convention`sdraft constitutional treaty explains better, who doeswhat in the EU. With the new categories of compe-tencies, the legislative structure becomes more trans-parent. Now we hope that the IntergovernmentalConference does not reshape the Convention`s pro-posal and we would have to ask ourselves again:What happened to competencies ?

Dr. JOACHIM WUERMELING, MEP(Alternate Member in the Delegation

of the European Parliament)(LL.M EUI 1989)

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Jacques Ziller a une grande qualité, parmi d’autres.C’est un grand connaisseur du droit constitutionnelet des systèmes politiques, mais il ne s’enferme paspour autant dans le langage des experts, si rebutantpour le non-spécialiste. Au contraire, il sait écrirepour tout le monde, dans une langue claire, simple etcaptivante. La qualité de son travail ne se limite pasà la langue, elle s’étend à l’architecture, qui simplifiece sur quoi il écrit, en met en lumière les lignes por-teuses et permet donc à chacun de ne pas se perdredans les méandres des détails techniques, qui fonttrop souvent les délices des juristes.

Ce sont là les caractéristique du travail que l’auteur aconsacré à la Convention et à la Constitution quecelle-ci a proposé. C’est pourquoi il a rendu un ser-vice d’une valeur inestimable à la Constitution et à laConvention, et je tiens à exprimer d’emblée ma gra-titude. La Convention était née pour donner unsouffle démocratique à une Europe à laquelle man-quait de plus en plus l’oxygène produit par le rap-port constant entre les citoyens et les institutions. Ceque nous avons fait pour simplifier les instruments etles procédures, pour clarifier les responsabilités,pour créer des voies de communication plus ouvertespour les parlements nationaux et pour les organisa-tions de citoyens avait pour objectif premier un telrésultat. Mais la Convention elle-même est née danscette Europe inaccessible, et elle a fait son possiblepour combler le fossé, grâce à la transparence et à lapublicité de ses travaux, grâce aussi aux contactsqu’elle a établis avec tant de parties de la « société ci-vile ». Malgré cela, non seulement beaucoup d’Euro-péens ignorent jusqu’à l’existence de la Conventioneuropéenne, mais tant de ceux qui en ont entenduparler savent fort peu du contenu et du sens de cequ’elle a fait. A vrai dire, rien ne pouvait mieux nousaider que des travaux comme celui de Jacques Ziller,que beaucoup liront de la première à la dernièrepage (ce qui n’est pas le cas de tous les livres). J’es-père qu’il servira de modèle à tous ceux, pas seule-ment dans la presse, mais aussi dans les autres mé-

dias, qui contribueront dans les prochains mois à ex-pliquer aux Européens ce qui va changer pour eux.Les pages qui suivent contiennent les réponses àtoutes les interrogations et curiosités que peuventsusciter la Convention et le texte qu’elle a produit. Ily a donc tout sur « la manière dont ça s’est passé » :les précédents, la composition, l’organisation inter-ne, le déroulement des travaux, les appartenancespolitiques des Conventionnels, les caractéristiques etqualités du Secrétariat, le portrait de ceux qui ontjoué un rôle particulier, jusqu’aux trois cavaliers soli-taires de l’antieuropéisme, le danois Bonde, le fran-çais Abitbol et le britannique Heathcoat-Amory. Et ily a tout sur « ce qui a été fait » : ici aussi les précé-dents, le passage de la simplification des traités à larédaction d’un texte nommé Constitution, les cha-pitres et thèmes de celle-ci, les problèmes rencontréspour chacun d’eux, les objections principalesconcernant l’un ou l’autre, et les résultats obtenus.De plus – et c’est là un enrichissement considérable– le texte est accompagné dans chaque partie de ta-bleaux qui permettent de visualiser les termes essen-

tiels du thème évoqué : pour traiter du calcul de lamajorité sur la base du nombre des Etats et de leurshabitants, un tableau donne les chiffres de la popu-lation et donc du poids qu’aura chaque Etat ; pourévoquer la Charte des droits fondamentaux, un ta-bleau compare ceux qu’elle garantit à ceux dontjouissent les Américains sur la base de la Constitu-tion des Etats-Unis ; pour parler des « formations »du Conseil des ministres, un tableau indique celles-ciune à une. Et lorsque sont évoquées les langues offi-cielles du texte, il n’y a pas seulement la liste desvingt et une langues, mais aussi une comparaison dequelques passages clés dans les langues des quatre

Le regard de deux professeurs de l’IUEsur la Convention européenne et

le projet de Constitution

Giuliano Amato

8

Préface de GIULIANO AMATO (Vice-Présidentde la Convention) au livre de JACQUES ZILLER La nuova Costitutzione europea, Bologna, Il Mulino, 2003, collezioneUniversale paperbacks, 176 p. version française à paraître: La nouvelle Constitution européenne, Paris, LaDécouverte, 2003, collection Repères, 128 p.

La nuova C

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plus grands pays (allemand, anglais, français et ita-lien) qui met en évidence les différences entre lesversions linguistiques, pas toujours de simplesnuances. En clair, il y a là tant d’informations que jesuis sûr que le libre sera utile non seulement auxnon-spécialistes, mais aussi aux experts, qui trouve-ront ici tout ce qu’ils n’osent pas demander et quesouvent ils ne savent pas.

Les résultats sont présentés dans un esprit qui enexalte le potentiel constitutionnel et qui pourtant enapprécie la complexité avec un grand réalisme. L’au-teur rend compte de mes doléances : le texte est mas-culin (un traité) alors que je l’aurais voulu féminin(une Constitution). Mais il conclut avec justesse quela nature encore internationaliste des procédures derévision (qui m’ont conduit à parler d’un traité) n’ex-clut pas que le texte réussisse à être vécu communune Constitution, du fait de son contenu. Ce conte-nu est en fait organisé, comme le remarque l’auteur,selon les canons des constitutions qui ont suivi la Ré-volution française : reconnaissance des droits des ci-toyens, organisation des rapports entre gouvernantset gouvernés, garanties réciproques des droits etpouvoirs. Et l’incorporation de la Charte des droitsfondamentaux – au-delà des pénibles compromis im-posés par les Anglais en échange de leur acceptation– est l’un des acquis « spectaculaires » de la Conven-tion.

Pour le reste, l’auteur se rallie – à raison, je crois – àl’appréciation finale du Président Giscard d’Estaing :« imparfaite, mais inespérée ». Il connaît bien l’his-toire de l’Europe, combien de tabous maintenus lorsdes occasions précédentes ont été bousculés par laConvention, et il apprécie donc mieux – mais, sobre-ment – les changements, que ceux qui avaient desobjectifs particuliers et souvent très ambitieux. C’estavec les précédents, dit-il, qu’il faut comparer les ré-sultats, et non avec les attentes de chacun. Qui plusest, il était rien moins que garanti d’arriver à un textenormatif clés en main, sur la base d’un mandat quiparlait de « recommandations ». Certes, un peu plusde majorité qualifiée n’aurait pas fait de mal. Et l’au-

teur regrette l’absence de la loi organique dans lessources de l’Europe future, une véritable lacuneselon lui. De plus quelques innovations restent denature ouverte : que deviendra le nouveau Présidentdu Conseil européen, plutôt un Président de la Ré-publique à l’italienne ou plutôt à la française ? Lesappréciations de l’auteur donnent une réponse à cetype d’interrogations. La Convention s’était ouvertesous un harcèlement de questions toujours présentes,mais sans réponse univoque et certaine : l’Europesera-t-elle fédérale ou confédérale ? L’Europeconfiée à la Convention doit-elle être celle des paysqui en font partie, ou doit-elle s’élargir encore ? LaConvention n’a pas répondu à ces question, et l’au-teur indique qu’elle a bien fait de ne pas y répondre.

Ce que nous avons écrit est une Constitution pour un« ensemble ouvert » : ouvert aux frontières, ouvertaux formes institutionnelles qui pourront prendrecorps à l’avenir sur la base de ses propositions.Même les Constitutions révolutionnaires – commeon s’en rend compte après des années – ne sont pasune rupture totale par rapport au passé et ne décri-vent pas dans les détails l’histoire à venir. La nôtren’est certainement pas une Constitution révolution-naire, d’autant plus que nous ne savons même pas s’ils’agit d’une vraie Constitution. Vivons-la et utilisons-la pour ce que nous pourrons en tirer, nous tous,pour construire les prochains chapitres de l’histoireeuropéenne. C’est pour cela que le livre de JacquesZiller est si utile. Il en aidera tant parmi nous à com-mencer à bien connaître cette nouvelle Constitution.

GIULIANO AMATO, Vice-Président de la

Convention européenne 2002-2003

Jacques Ziller

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The most striking element in the title of the DraftTreaty is the coupling of the concept of treaty withthat of constitution. It signals the futility of the tradi-tional attempt to define the EU in ‘either/or’ terms: in-ternational organisation v. State. Not any more con-ceived of as a liability, the EU’s constant ‘sui-generici-ty’ is constructively recognised as its most constitutivecharacteristic. This opens the way to a definition of theEU for its own sake. That is precisely one of the aimsof a constitution. Indeed, a constitution assumes aconstitutive function according to the political com-munity to which it relates. It symbolises the heart ofthis political community. It is the bearer of the mythosand the logos of the political community, i.e.: the col-lective imaginary and the rational political arrange-ment to which it gives birth. In so doing, the Consti-tution crystallises the dialectic between authority andfreedom with regard to power. Hence, a constitutionis usually described as presenting two basic features:the soul of a political community (its most fundamen-tal values) and its body (its political architecture). Thelatter covers two dimensions: a horizontal one, i.e. theoverall institutional design and the principles presid-ing over the relationship between political organs, anda vertical one, i.e. the legal status of the members ofthe political community and their relation to thatcommunity: the limits of their action and the extent oftheir protection.

Hence it seems that the EU has been granted a heart,a soul and a body. However, it is generally acceptedthat its blood is far from new. If the Constitution forEurope was formally shaped into a treaty, it is precise-ly because it is in keeping with the general pattern of along chain of European treaties. This gives rise to twoopposite positions: the persistent characterisation ofthe EU as a mere international organisation based ona treaty on the one hand, and the description of theEU riding on ‘constitutionalising’ waves on the other.Nevertheless, the Draft Treaty possesses an originalfeature that distinguishes it from its predecessors: itaims to clarify, simplify and adapt the European ac-quis. In this trend, Neil Walker describes the passagefrom European treaties to a Constitution for Europeas a “constitutional moment”. Again, no choice has tobe made between these interpretations. Each sheds aspecific explanatory light on different aspects of thisConstitution. One places more emphasis on continu-ity and evolution, the other, on novelty and, in a way,revolution. Furthermore, it is far too early to assesswhich version will prevail in European historiography.But why a constitution?

Apart from giving the EU’s ‘sui-genericity’ its due, itexpresses the recognition of the EU as a key actor onthe European political chessboard. Indeed, the searchfor legitimacy that pervades the EU’s constitutionali-sation answers the following question: how a “comingtogether” of democracies could be anything else otherthan a democracy itself without betraying the veryfoundation of democracy? However, this does notimply expanding the scope of the EU’s political power.Quite the contrary, some perceive the Constitution asan attempt to set the EU’s boundaries and thus protectthe Member States from any encroachment from theEU. That is why it must be asked whether the DraftTreaty carries a notion of a democratic constitution.

First, a written democratic constitution enters intoforce thanks to the action of the constituent power(s)representing the will of the people(s). The EuropeanConstitution is formally framed within a treaty which,as such, will have to be voted and ratified unanimous-ly by the Member States empowered by their respec-tive people. Hence, a treaty seems to be an appropri-ate democratic instrument. Furthermore, as pointedout by Jacques Ziller, the Draft Treaty was elaboratedby the European Convention, which was of an ex-tremely diverse and complex composition.

Secondly, from a material perspective, in order to bedemocratic, the European Constitution has to includethe most fundamental ‘European’ values and to pro-vide a guarantee against misuses and abuses of power. First, according to Article 2 of the Draft Treaty: “TheUnion is founded on the values of respect for humandignity, liberty, democracy, equality, the rule of lawand respect for human rights. These values are com-mon to the Member States in a society of pluralism,tolerance, justice, solidarity and non-discrimination”.

Constitutionalism in Europe in the Eraof the Draft Treaty Establishing

a Constitution for Europe

Karine Caunes

Constitutionalism

in Europe

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Hence the axiological condition seems to be fulfilled.However, some authors have tried to find other values,not only common but also exclusively European. Thegrounds, efficaciousness and usefulness of thisthought process are doubtful. Must European valuesand European identity be formulated in strategicterms, according to international power relations? Dowe want to risk the creation of a European national-ism? Would it not be contrary to the ideal of peace atthe basis of the European project? Is it possible tofound a ‘thick’ European identity on thin commonvalues? Indeed, values are so general that their actualapplication gives rise to competing interpretations andvery different solutions.

Secondly, if the EU’s institutional scheme does not re-flect an institutional division following the traditionalpath of the separation of functions, it does organisethe separation of power by the distinct representationof the different interests at stake. In this way, it also re-flects the diverse political powers in different ways ac-cording to the function concerned. Hence, for exam-ple, in the legislative process, the Council of Ministersis supposed to represent the Member States’ interests,the Commission, the so-called ‘Community’ interests,the European and national Parliaments, the peoples’interests. The same pattern could be used to analysethe principle of distinction between the different typesof European legal acts. This also seems to apply to theExecutive power. The proposal of a ‘double hatted’EU Presidency (the President of the Commission andthe President of the Council) is in accordance withthis analytical approach. A final example could also betaken from the taxonomy of competences laid down inthe Draft Treaty. Each time, a subtle equilibrium ofpowers is organised according to the sensitivity of thesubject matter as is the case for the use of either theCommunity or the intergovernmental method. Fur-thermore, the inclusion of the Charter of fundamentalrights of the Union “addressed to the Institutions,bodies and agencies of the Union with due regard forthe principle of subsidiarity and to the Member Statesonly when they are implementing Union law” (ArticleII-51) constitutes another guarantee against potentialabuses of power by the EU. Moreover, the Charteraims also to protect European citizens (Article I-8 andTitle I-VI). However, if this is a democratic constitu-tion, is it really the constitution of the EU? In fact, to-gether the EU and the Member States are not forminga bi-dimensional polity as asserted by ‘muti-level con-stitutionalism’ but a tri-dimensional one reflecting theheterarchical relationship prevailing between them.

A bi-dimensional description would imply the institu-tionalisation of a tense hierarchical relationship. Itwould imply for example a choice between the ab-solute (the ECJ’s) or the relative (national courts’) in-terpretation of the primacy of EU law, both possibleunder the Draft Treaty (Article I-10.1) as shown byPaul Craig or a choice between the delegation of theexercise of some attributes of sovereignty by the Mem-

ber States to the EU or a definitive transfer of supremeauthority namely sovereignty to the EU.

Conversely, the incommensurablity of these compet-ing positions reflecting different standpoints and thus,a plurality of final interpretative powers (Kompetenz-Kompetenz), expresses and ensures a true Europeanconstitutional pluralism, i.e. a plurality of loci ofsupreme authority. Hence, competing views enjoyingequal authority and status regarding the nature of therelationship between the EU and the Member Statesbecome complementary. Like the principle of sub-sidiarity, the supplementary nature of EU citizenshipto Member States citizenship is but one example ofthe overall European architecture. Based on “multipleco-existing demoï” as pointed out by Joseph Weiler, itdoesn’t prevent the existence of a European con-sciousness as demonstrated by the European SocialFora. Thus, from these dialogic interactions amongconstitutional units, organised through the principleof coordination or ‘true’ federalism according toDaniel Elazar, arises a third dimension which, by itsvery existence, performs the function of expressingand protecting this pluralist political architecture.

Following a Kelsenian analysis, the European consti-tution embodies both the EU’s Constitution relatingto the EU sensu stricto and the “Constitution for Eu-rope” or Constitution of the EU sensu largo relating toEU/Member States relationship (Article I-5).

A last tricky question remains: what of sovereignty?Since the existence of the principle of the separationof powers, there is a distinction between the essence ofsovereignty which is indivisible and the attributes ofsovereignty (competences) whose exercise is divisible.In the European context, this exercise is divided be-tween the EU and the Member States. The essence ofsovereignty lies with its ‘natural’ owner in a democra-cy (which is each constitutional unit): the Europeanpeoples. Taken together, the essence and attributes ofsovereignty reflect a general map of power. Hence,sovereignty is usually seen as supreme authority. AsMichel Troper argues, two meanings have to be dis-tinguished: supreme as having no superior, andsupreme as being superior to the others. Here, the pe-culiarity of constutitional pluralism expresses itself.Each constitutional unit considers itself as the masterof its kingdom according to its own norms and thus,as superior to the others. This is the basis of constitu-tional pluralism. Meanwhile, from the third globalperspective, they are all masters of their kingdom, i.e.have no superior, but none of them is superior to theothers.

As a conclusion, the ongoing process of constitution-alisation reflects both the mythos: unity in diversityand the logos: constitutional pluralism of the Euro-pean polity.... a pluralist State?

KARINE CAUNES

Researcher (LAW)

Pan

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Pandora’s Box is OpenCan we manage?

Europe is undertaking so many efforts at once. TheConvention process is the most visible among them,at least for lawyers. On the 10th of July 2003, afteronly 16 Months of deliberations, with the DraftTreaty Establishing a Constitution for Europe, theConvevntion had completed its work. The elabora-tion of the four Parts comprising 465 Articles andfive Protocols – and the consensus on them – are, inthemselves, very significant achievements. But thefortune of the Draft Convention is far from sure.

Will it be adopted telle quelle under the Italian Pres-idency or later? What will be the outcome of refer-enda be? Should the Convention, if it survives its rat-ification stage, be understood as a constitution orrather as a charter? This question also relates to East-ern enlargement, Europe’s second project of histori-cal dimensions. And Iit is only through a charter, ar-gues Pierre Rosanvallon, that Europe can hope toorganise its diversity and inscribe itself into an openspace., argues Pierre Rosanvallon.

The legal, political, economic, social and cultural di-mensions of enlargement are the most pressingamong Europe’s new challenges, but they are not theonly ones. The search for a new constitutional legiti-macy implies that Europe has to address its notori-ous “social deficit”. According to Part I of Article 3(3) of the Convention, the Union shall work for a“social market economy”. What does this commit-ment entail? Is it at all conceivable that the Europeansocial model can be realiszed with the means provid-ed for in Chapters II and III of Part III?

A democratized, enlarged and social Europe – thisdescription of the present European agenda is stillfar from complete. One project of enormous propor-tions which the wider public and the constitutionaldebate has so far hardly noticed is the preparation of

a pan-European code of private law. Thisat idea wasfirst promoted in two resolutions of the EuropeanParliament back in 1989 and 1994. It was then takenup in a much more moderate version by the Com-mission in its Action Plan of 12 February 2003, andit will be the object of the object of the one and onlyprivate law network of excellence to be financedunder the 6th Framework Programme. What a pro-ject! France’s Code civil which the grande nation hasalways perceived of as a legacy of its Great Revolu-tion; Germany’s Bürgerliches Gesetzbuch which Ger-many venerates as a lasting memorial of itsRechtswissenschaft’s contribution to Germany’s uni-fication; the common law of England and Wales,which forms nothing less than a cornerstone ofBritain’s constitutional architecture – are all of these(and many more!) distinct traditions to merge into aius commune privatum?

“L’éssentiel est invisible pour les yeux”, observes An-toine de Saint Exupéry’s Petit Prince. His monitumwas a signal of trust and hope. What is hidden be-hind our institutionalised communality, however, is,to a large degree, unpleasant and frightening. TheEuropean integration project was designed in theearly 50s as a response to Europe’s “darker past”: theheritage of nationalism and dictatorship, the cruel-ties of the Holocaust and the war had to be over-come once and for all. The novelty and the chal-lenges of the present “constitutional moment“ arebound to initiate new debates on Europe‘s finalitéand identity. This will imply a new “politicization” ofthe integration project. How well are we protectedby the successes of the European integration projectagainst a resurfacing of Europe’s darker legacy? ORHow well do the successes of the European integra-tion project protect us against the resurfacing of Eu-rope’s darker legacy? Will it be at all be possible todiscipline the politics of memory within our societiesand do away with the instrumentalization of ourpasts? Much would be achieved if both the impor-tance of this issue for the constitutionalisation of Eu-rope and the risks of playing around with traumatichistorical memories were, at least, understood. Therehave been many alarming signals: The Italian Presi-dent invites his critic Martin Schulz, Member of theParty of European Socialists, to act as a concentra-tion camp ‘Kapò’ in a film. Herr Martin Hohmann,Member of the German Bundestag, delivers a skin-crawling anti-semitic speech on Germany’s Tag derdeutschen Einheit. A German initiative for a memor-ial on all the people expelled from their Heimat pro-vokes deep anxieties in Poland. According to theEurobarometer carried out in the second week ofOctober, the majority of citizens in all Member

Christian Joerges

In mem

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States (with the exception of Italy) believe that Israelpresents a unparalleled threat to peace in the world.

All of these incidents have had their aftermath. Mar-tin Schulz, the Social Democrat from Germany, ex-periences the solidarity of his fellow parliamentari-ans and his party places him at the head of its list forthe upcoming European elections. Martin Hohmannwill be excluded from his party and will have to giveup his mandate. The Presidents of Germany andPoland, in a carefully prepared communication, haveappealed to the readiness for reconciliation and havesought mediation at a European level. The Presidentof the European Commission has assured the worldthat the Eurobaromenter survey will have no impacton the Commission’s policies.

“L’éssentiel est invisible pour les yeux”. There is amore hopeful side to the Petit Prince’s message.What is not so visible, because it seems so unexcitingand trivial, is the performance of the European ma-chinery, the innumerable, small and not so small, in-dicators of good European governance. Europe is in-

volved in so many segments of our societies. It is in-stigating countless innovative projects. It is notbuilding up a demos but has, nevertheless, estab-lished a European public. Should Europe have putmore trust in the legitimacy that its handling of ourdaily affairs can generate? This choice is no longeropen. The great projects are under way. The expec-tations they raise are high. What about disappoint-ments in the event of failures? There is a risk that thecomplicated European machinery, the pragmatic andincremental daily integration business, will be affect-ed by disappointment about Europe’s higher poli-tics. For this very reason, it is all the more importantto understand the reasons why European matters areso hard to grasp in full: why they cannot be simpli-fied, and why those who demand or promise this arenot to be given credence, and, finally, why it is actu-ally worthwhile to continue working on the less visi-ble.

CHRISTIAN JOERGES

Law Department

In memoriamPaolo Donati

Paolo Donati was an unusual student. He had to be convinced of the worth of writinga dissertation, and I was sure that he would produce an excellent one. But he always hadthe feeling he was not up to the standards he set himself, also fearing that academicwork might alienate him from real life. So he was driven between academia and profes-sional work. Yet he produced an excellent dissertation, and subsequently turned to pro-fessional work.

Before he came to the EUI, he had been part of a group of researchers put together byAlberto Melucci in Milan, working on environmental movements in Italy. Paolo did notconfine himself to the analysis of environmental protest; he continually questioned itsrelevance to shaping environmental policy. His dissertation has become an example ofcrossing the divide between environmental politics and environmental policy, this beingenabled by theoretical imagination and methodological rigour.

His particular skills were methodological. He had big plans to give to his favourite fieldof discourse analysis a robust technical and epistemological basis. He wrote on thesethings in recent years while continuing his professional work, using these methodologi-cal competences.

Working with Paolo as a doctoral student as well as a research collaborator at the EUI,I got to know his particular personal charm and seriousness. He was an excellent de-bater, but not only that. He played soccer with my little son when he came to our home.He was simply a great person.

We lost him. Paolo died on November 11 in a traffic accident.Klaus Eder

It was hardly a case of flawed analysis. The Decem-ber 2001 Laeken Declaration by the highest politicalleaders of fifteen European peoples was clearenough to all those they represent: “Within theUnion, the European institutions must be broughtcloser to its citizens. Citizens undoubtedly supportthe Union’s broad aims, but they do not always see aconnection between those goals and the Union’severyday action. They want the European Union tobe less unwieldy and rigid and, above all, more effi-cient and open. (..) [T]hey feel that deals are all toooften cut out of their sight and they want better de-mocratic scrutiny (..).”

To act upon these observations, the European peo-ples’ highest representatives decided to convene aConvention. By way of simplifying and reorganisingthe current four Treaties its task would be to draftthe European Union the most fundamental and sym-bolic of texts in any political setting, a “Constitutionfor European Citizens”. The set-up of the Conven-tion was taken over from a recent experiment in Eu-ropean close-to-the-citizens politics, a heavy-weightbody of national and European politicians that draft-ed an EU catalogue of fundamental rights. The fre-quent reference by the Constitutional Convention’sChairman to the famous draftingof the US Constitu-tion, in Philadelphia, suggested a self-understandingof history-making in progress. The message wasclear: this was not to be seen as yet another negotia-tion only slightly modifying the Treaties.

Therefore, from a citizens’ perspective, the resultingDraft should be looked at with the Laeken Declara-tion’s intentions of making Europe simpler and moredemocratic in mind. It should also be judged in thelight of a random reader’s association of added im-portance when coming across a term like “Constitu-tion”. All the more so since the top Conventioneersoften clearly played on this type of association, there-by using it as a legitimisation of their own activities.

Given this, I believe the conclusion is as straightfor-ward as it is disturbing: the Constitutional Draft is aparticularly poor piece. By reading this text a Euro-pean citizen will not easily understand what theUnion originates from, what it is for, what it there-fore does and how it does it.

Indeed, the Draft appears to be too light by justabout any measure of Constitution-making. It is toolong, longer than any national constitution of the fu-

ture twenty-five European states. The double-edgedsword so wisely designed for close-to-the-citizensConstitution-making, that of simplification/reorgan-isation, only hesitatingly cuts at the reorganisationside. It is very far from simple, with its set-up in fourparts (the first part of which is an incomplete Con-stitution (it should, for example, have included partfour), the second part a catalogue of fundamentalrights that should either be the first part of the Con-stitution, or – preferably, as it is too long for thatpurpose – only be referred to in the Constitution andthen left to exist in parallel to the European Consti-tution as a European Union Bill of Rights with itsown textual logic, and the third part a treaty textwith mostly constitutive, not constitutional provi-sions). On top of that it is entirely unclear what hascome of the initial concerns for enhanced opennessand closer democratic scrutiny. And which citizen isto understand the (confusingly renumbered re)num-bering of the articles?

The Charter of Fundamental Rights was accompa-nied by a document explaining to insiders the mean-ing of its provisions, the “Explanations”. This un-usual expert clarification to a layman’s clarificationwas needed to facilitate a political compromise overcitizen-tailored simpler language. (These Explana-tions are given constitutional status in the Draft,clearly reversing the previous compromise). ThisConstitutional Draft seems to need both an expertand a layman’s clarification. It bears every sign of theusual and exclusive bargaining by and for states.And although there are quite a few important im-

“The

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The Draft Treaty Establishing a Constitution for Europe

A Citizens’ Perspective and an Alternative

John Morijn

“The P

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provements, such as the new simplification of themost important legal instruments (laws and frame-work laws), I think that on the whole the many com-plicated compromises make a complete mockery ofthe simplification/reorganisation logic that was to fa-cilitate a design of a Europe understandable to Eu-ropean citizens.

The picture is clear. Quite simply, when it reallycame down to it, European citizens’ interests werethe least of concerns. As a result, in line with LouisXIV’s famous statement “L’État, C’est MOI”, the fif-teen peoples’ representatives are now hammeringout the last details of their new deal: “L’Union, C’estNOUS”. And although in 2000 a set of mostly al-ready binding human rights was puzzlingly con-densed into a Charter ‘as if’ it would be capable ofhaving binding force, one day, this 2003 Draft Con-stitution is intended to be adopted as binding. Citi-zens’ interests would have been served better by a re-verse scenario.

But it is easy to criticise. Therefore I was happy tojoin a project by Oscar and Merien ten Houten, awriter and an internet-enterpreneur from TheNetherlands, to draft an alternative European Con-stitution: the People’s Constitution for the EuropeanUnion (PCEU). On the presumption that this mustbe possible when aiming at drafting a Constitution,the purpose was to design a text understandable toeverybody, readable, and sufficiently concise. Itwants to educate and inform people about the state-of-the-art in their Europe, without going into toomuch detail. At the same time it attempts to answersome of the basic ever-returning questions in Euro-pean Constitution-making (Q: reference to Catholi-cism?; A: No, because it is covered by the referenceto human rights, more specifically the freedom of re-ligion – Q: reference to Federalism?; A: is superflu-ous, as every informed observer knows the EU inmany respects is already that, etc.). The intentionwas always to start from the simple standpoint ofwhat we think would best serve the interests of Eu-

Preamble to the People’s Constitution for the European Union

THE EUROPEAN NATIONS have overcome their past enmities and formed a Union in which theywill affront the future together in friendship and peace.

This Union is characterised by a rich diversity of peoples and cultures, that are nonetheless united inrecognising certain fundamental values: the inviolability of human dignity, equality among Man andthe sovereignty of the people.

In the past the European people's sovereignty has been exercised and monopolised by sovereign Eu-ropean states. Today's reality is that the importance of shared interests of European people often out-weighs the importance of the continuing exclusive relationship between national citizens and their na-tional state. Therefore on the territory of the Union the most fundamental concern should be at whichlevel of government, national or European, the people's sovereignty is most effectively and beneficiallyexercised.

Within the Union the people's sovereignty is exercised by representatives the people elects to governin its name and interest. They oblige themselves to do so in accordance with the will of the majority,but with respect for each and every minority, within the limits set out by this Constitution.

It is the pride of Europe to be the native ground of democracy and democratic principles. Over thecenturies these principles have all too often been denied, causing indescribable human suffering. Stillthe noblehearted have always continued fighting for democracy and justice, laying thereby the foun-dation of today's and tomorrow's Europe. The longing for the rule of law and the sacrifices of thebrave in establishing constitutional structures have proved stronger than the forces wanting to deprivethe people of its rights.

But the citizens of Europe are never to take their democratic attainments for granted. Now, as ever, itis their duty to remain vigilant and assure themselves that their leaders have as their sole objective thecreation of a better Europe for all its citizens and to contribute to making this a safer and more peace-ful world for all.

The citizens of Europe are called upon continuously to verify this; they do not only have the right toelect their representatives, but they also have the duty to control them, to keep reminding them oftheir responsibilities and in the most extreme case to free themselves of them.

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ropean citizens. But the most important aim was tostir up a discussion. As we never intended to imposeour views in any way, we opened an online discus-sion-platform (http://www.pceu.org/forum/index.php?lang=uk). By now the text of the Alternative isavailable in 5 European languages.

To give some basic idea of the Alternative, the PCEUstarts with a clear vision of what the Union originatesfrom and what it exists for (see box). It leaves mostsubstantial provisions intact since untouched (seeprovision on legal status and scope), but abolishesmany unnecessary formal complications (such as thepillar-structure). The European Council, Council ofMinisters and European Commission are mergedinto a “European Government”. The powers of theEuropean Parliament are substantially widened. Eu-ropean citizens, following the draft’s logic that everysingle one of them has (to develop) both a nationaland a European loyalty, will be able directly to electtheir preferred europarliamentarian irrespective ofthe candidates’ Union nationality. Apart from thatEuropean citizens are continuously involved in shap-ing their Europe by way of popular referendums onimportant issues. A European Senate, consisting ofnational representatives, is also set up. We createonly one legislative procedure that can lead to justtwo results: laws or framework laws. And the intend-ed legal status and scope is evident from the last sen-tence of the concluding observation of the PCEU:“This Constitution is the renewed and highest legalbasis of the Union. Primary Union law not replacedby it and secondary Union legislation currently inforce shall be understood and interpreted in light ofthis Constitution.”

Bringing the European Union “home” to those onbehalf of whom it exists will require a radical breakwith the ways in which today’s Union was broughtabout. The PCEU was drafted as an agenda for dis-cussion, a modest starting-point to address basicquestions that European citizens can understand(and, judging from the many enthusiastic reactionsto the Alternative, deeply care about). Of course thePCEU would simplify the current set-up enormous-ly, but if agreement is impossible on substantialchanges that would make the EU simpler and moredemocratic, then apparently Europe is not ready fora Constitution. And in that case it should not pre-tend to have one.

Criticism of ongoing (re)defining projects in the Eu-ropean setting is often felt as criticism of the (veryexistence of the) European idea(l) itself. This is anoften unfair assumption, that paradoxically consti-tutes a grave underestimation of the considerable(and, I think, largely irreversible) achievements theEuropean project has brought about for every Euro-pean citizen. The PCEU intends to show that takingseriously the talk about a citizens’ Europe wouldhave to lead to substantially different results – aUnion of very different ways and design – and setsout to initiate a discussion with regard to this. It isparamount to start this discussion soon, as referringto a democratic enlarged Union close to its citizensonly to continue on the same old route will eventual-ly inevitably strand. That would be in nobody’s in-terest.

JOHN MORIJN

Researcher (Law, first year)

On 28 - 29 November the workshop ‘Implications ofEnlargement for the Rule of Law, Democracy andConstitutionalism in Post-Communist Legal Orders’took place at the Institute.

It was co-organised by Wojciech Sadurski (EUI),Adam Czarnota and Martin Krygier (both from Uni-versity of New South Wales, Sydney) and the ItalianRepresentation of the European Union in Rome.

The “coming together” of the two parts of Europecan be seen, as far as constitutionalism and the rule oflaw are concerned, from two different perspectives:(a) will the enlargement of Europe erode the consen-sus built around “common European traditions” ifthe traditions of the CEE (and, in particular, theirconstitutional practice so far) turn out incompatiblewith those of the Western half of the continent?(b) will both the prospect and the reality of enlarge-ment affect the approach to, and the implementation

of, the ideals of constitutionalism, human rights andthe rule of law among the candidates and the newMember States?

This workshop is concerned mainly with the latterquestion. It investigates the multiple effects, bothpositive and negative, of the very prospect of acces-sion, and of the likely first years after accession, uponthe understanding of constitutionalism, the rule oflaw and human rights both among the main legal-po-litical actors (judges, politicians, MPs, journalists)and among the general public in the accession states(both those who join in the first round, such asPoland, Hungary and Slovenia, and also those forwhom the prospect of accession is a long-term per-spective).

Papers of the workshp may be found at:http://www.iue.it/LAW/Events/WSWorkshop-Nov2003.shtml

European Forumand Department of Law workshop

The Sapir R

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Achieving and sustaining growth in the Eu-ropean economy is an absolute necessity -easy to say but hard to deliver, and increas-ingly hard in the face of global pressuresand intense international competition. Inspring 2002 Romano Prodi, President ofthe European Commission, turned to agroup of independent experts for advice onhow to get the European economy back ontrack. So there we were, six economists,among them Giuseppe Bertola, then chairof the Economics Department at EUI, andone political scientist – me –, with AndréSapir, of the Université Libre de Bruxelles,as Chairman of the group. What a chal-lenge!

The Sapir Group followed themodel of the Padoa-SchioppaGroup and its 1987 Report on Ef-ficiency, Stability and Equity, in acritical moment between the deci-sion to complete the single Euro-pean market and the designing ofthe blueprint for economic andmonetary union. Our job was todraw from the best of current eco-nomic analysis a thorough assess-ment of where the obstacles togrowth lie, against the backcloth ofnew challenges, such as enlarge-ment of the EU, the demographicprofile of Europe, and the impactof globalisation. We were asked torelate these to the 'economic sys-tem' and governance of the Unionand to make recommendations forfuture policies and reforms.

The conclusions of our delibera-tions were presented to RomanoProdi in July 2003, (http://eu-ropa.eu.int/comm/dgs/policy_ad-visers/), and will be published inEnglish by Oxford UniversityPress and in several other languageeditions. Our main message is thecritical importance and urgency ofsetting the European economy onto a positive growth trajectory –failure to do this would compro-mise other economic objectivesand put at risk the political ambi-tions and public acceptability ofthe Union. We welcomed the sta-bility already achieved by the sin-gle currency, but argued that thisneeded to be complemented by

policies which would encouragerather than cramp growth. Thisneeds some adjustment andstrengthening of collective macro-economic policies – the economicside of EMU. But the more impor-tant efforts need to be put into arange of micro-economic policies,with stronger incentives for

growth-encouraging actions. Ourpriorities here were rather clear:– more and better quality invest-ment in human capital, especiallyhigher education, and in R&D, be-cause of the necessity to act at theinnovation frontier;– more scope to facilitate marketentry by new entrepreneurs andespecially those operating in newtechnological sectors;– adapting the labour market tothese objectives, but against abackcloth of rapidly ageing popu-lations, hence encouraging labourmovement between sectors, be-tween countries, AND from legalmigration; and– continued work to deliver thesingle market which remains dam-agingly incomplete, especially in fi-nancial services; and– give priority, notably in EUfunding programmes, to helpingthe new and poorer member statesto converge.How should these policies beachieved? We argue in the reportthat the inherited economic systemof the Union – in spite of its manyachievements – contains some seri-ous obstacles to growth-inducingpolicies. Not only do policies need

to change, but their governanceneeds to be improved in order todevelop and to deliver appropriatepolicies. Here our messages are asfollows:

– sharpen up the macro-econom-ic policy process, with more pres-sure on member governments todeliver their side of the EMU bar-gain; – stick at the Lisbon strategy, butwith more focused and less diffusetargets;– press member governments totake more ownership of the strate-gy, with the Union acting as a facil-itator for country-level reforms;– develop genuinely indepen-dent European agencies to deliverfunction-specific policies, both forregulation (competition, food safe-ty etc.) and for funding (scientificresearch);– encourage the development ofsteered networks and partnershipsof national regulatory bodies,keeping close to market develop-ments; and– reform the EU budget to focusits limited resources on incentivesfor economic dynamism, includingconvergence by the new members.

These messages are tough and re-quire radical reforms of policycontent and governance. Not sur-prisingly therefore the Sapir Re-port has generated a good deal ofpolitical controversy. But the issuesand stakes are such that somefierce argument is indeed neces-sary to produce good results.

HELEN WALLACE

Director, Robert Schuman Centre

for Advanced Studies

The Sapir Report:An Agenda for a Growing Europe

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The EU’s eastward enlargement in 2004 will trans-form the interaction between the political, economicand legal orders of the old and new Member States.With regard to the Central and East European coun-tries (CEECs) the emphasis will fully shift to ‘capac-ity’ issues concerning the implementation of the ac-quis and the sustainability of the norms and rulesadopted over the last decade. The post-enlargementcontext will also confront the old Member Stateswith some of their own internal dilemmas regardingnorms and policies. The issue of minority rights isone of the best illustrations of these post-enlarge-ment challenges for the EU. Two interrelated pres-sures for change have underpinned the re-emergenceof a rights agenda for minority protection in Europe:the collapse of communism and the EU’s eastwardenlargement. The idea of a ‘return to Europe’ rankedhigh on the post-Communist political agenda inCEE, demonstrating a commitment to Europeannorms and practices. The perceived need to promotestability, peace and democracy in the region saw thescope and visibility of organizations like the OSCEand the Council of Europe increase, and their normson minority rights were translated into the ‘Copen-hagen criteria’ for EU membership in 1993.

The first of the four Copenhagen conditions explic-itly includes a reference to ‘respect for and protec-tion for minorities’. Inside the current EU, however,minority rights are much less prominent. Article 6(1)of the Treaty on the European Union (1997) definesthe common principles of the European Union as‘liberty, democracy, respect for human rights andfundamental freedoms and the rule of law’. Thewording is identical with the first Copenhagen crite-rion – with one important exception: the reference tominorities. Article 49 further highlights this lacunaby specifically referring to Article 6(1) as among theconditions for EU membership. During enlargement, the minority ‘condition’ facedat least three compliance problems in the CEECs.Firstly, it lacked a clear foundation in EU law andconcise benchmarks. The practices of the currentMember States vary widely, ranging from elaborateconstitutional and legal means for minority protec-tion and political participation to constitutional uni-tarism and outright denial that national minoritiesexist. Secondly, minority rights were not an internalEU priority. Thirdly, the concept of what constitutesa ‘national minority’ and minority rights are deeplydisputed in international politics and law.

The Commission’s annual Regular Reports, follow-ing on from the Opinions of 1997, have been theEU’s key instrument to monitor and evaluate the

candidate countries’ progress towards accession. TheReports, characterised by ‘ad hocism’, have focusedon two minority groups in particular: the Russo-phone minorities in Estonia and Latvia, and theRoma in Bulgaria, the Czech Republic, Hungary, Ro-mania and Slovakia. This emphasis suggests that theEU is more concerned about its external relationswith its most powerful neighbour and main energysupplier – Russia - and soft security migration issuesthan with minority protection as a norm per se. Theemphasis has been on the adoption of formal mea-sures rather than the reality of policy implementa-tion. The Reports track the adoption and amend-ment of constitutional provisions and laws on citi-zenship, naturalization procedures, language andelectoral rights, the establishment of different bodiesmanaging minority issues and the launch of govern-ment programmes to address the needs of specificminorities. In the case of the Roma, the lack ofprogress and policy implementation is openly ac-knowledged by the Commission. This recognition isin itself indicative of the limitations of the EU’s mon-itoring mechanism, as it illustrates the lack of a cor-relation between the Reports and a tangible im-provement in minority protection.

EU conditionality is not clearly temporally correlat-ed with the emergence of new political strategies andlaws on minority protection in CEE. For example,Hungary’s ‘Law on the Rights of National and Eth-nic Minorities’ granted collective rights and culturalautonomy to thirteen recognized minorities as earlyas 1993. In Slovenia the law of October 1994 on‘Self-Governing National Communities’ created ter-ritorial autonomies and a guaranteed seat in the na-tional parliament for the ‘autochthonous’ Italian andHungarian minorities. The Hungarian case illus-trates best how the domestic political will in favourof minority protection is critically shaped by nation-al interests, namely the concern for the sizeable Hun-garian minorities located in neighbouring countries(Slovakia, Romania, Serbia, Ukraine). In the case ofHungary, the EU ultimately acted as one of thebrakes on overly extensive rights for co-nationalsabroad, as embodied in the controversial HungarianStatus Law.

In general, it is easier to trace the EU’s impact onspecific laws or regulations. The adoption of Slova-kia’s language law of July 1999, for example, is close-ly linked to the EU accession process as reflected inthe Regular Reports. The Slovak language law allowsthe use of minority languages in local public admin-istration subject to a minority population thresholdof 20 per cent in a given area. The changes to the cit-

Minority Rights in Europe: A New Policy Push from Central and Eastern Europe?

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izenship and naturalization provisions in Estonia andLatvia, in particular, demonstrate that the EU’s poli-cy leverage to comply with European and interna-tional standards has been anchored elsewhere, name-ly in the recommendations of the OSCE and theCouncil of Europe. The impact of the EU on minor-ity rights in CEE is difficult to disentangle and hasoften been overshadowed by strong domestic politi-cal interests. One of the main achievements of theEU in the area of minority protection is that it hasmade the objective of ‘minority protection’ an inte-gral part of ‘EU speak’ in CEE.

Despite the link between the EU’s eastward enlarge-ment and the ongoing constitution-making processat European level, minority rights did not emerge asa prominent issue during the Convention on the Fu-ture of Europe. The resulting Draft ConstitutionalTreaty is void of any mention of minorities. The val-ues and principles stipulated in the preamble, Part Iand the preamble and the text of the Charter ofFundamental Rights at best provide indirect avenuesfor minority rights protection. Article 2 of the DraftConstitutional Treaty conceals the inherent contra-diction between the EU’s internal values and its con-ditions for membership somewhat ‘better’ than itspredecessor (Article 6 TEU), as the wording nolonger copies the language of the first Copenhagencriterion. It now reads: ‘The Union is founded on thevalues of respect for human dignity, liberty, democ-racy, equality, the rule of law and respect for humanrights. These values are common to the MemberStates in a society of pluralism, tolerance, justice, sol-idarity and non-discrimination’. The preamble to theCharter of Fundamental Rights, now Part 2 of theDraft Constitutional Treaty, clearly captures a relatedinherent tension when referring to the Union’s re-spect for the ‘diversity of the cultures and traditionsof the peoples of Europe as well as the national iden-tities of the Member States’. As the IGC continues todiscuss and amend the Convention’s Draft, Hungaryhas taken the lead in a last-minute attempt to en-shrine explicit minority rights in the final text. Hun-

gary’s proposal has triggered an instant negative re-sponse from the Slovak and Latvian governments,which face the challenge of accommodating a size-able Hungarian and Russian-speaking minority re-spectively.

It is too early to tell what the outcome of the interac-tion between West and East European models of mi-nority protection will be in the post-enlargement pe-riod. Rather than reinforcing the distinction betweennew and old Member States, the issue of minorityrights cuts across geographical and historical bound-aries. Two major scenarios are feasible: on the onehand a form of ‘reverse conditionality’, emanatingfrom the new Member States, could infuse the EUwith a new commitment to minority rights; on theother hand, a new tacit policy consensus on inactionin the area of minority protection may emerge with-in an enlarged EU. For the time being, a combina-tion of both scenarios appears to be the most likelyoutcome: minority rights will make for one of sever-al issue dimensions for coalition-building across oldand new Member States. As long as the EU remainscommitted to further enlargement – to include Bul-garia, Romania, Turkey and possibly Croatia andother South-East European states – ‘respect for mi-nority protection’ will remain an integral part of therhetoric of accession. Though unlikely to become aninternal EU policy priority, this momentum may suf-fice to promote awareness and best practice insidethe EU and bolster the profile of related instruments,most importantly the Council of Europe’s Frame-work Convention for the Protection of National Mi-norities and its monitoring mechanism. Moreover,the current process of constitutionalization at Euro-pean level seems to be widening the scope of the Eu-ropean Court of Justice, the European Court ofHuman Rights and the European Parliament for re-viewing minority issues within the framework ofhuman and fundamental rights. Any meaningful def-inition of constitutionalism has to combine practicaland normative dimensions, whether as regards insti-tutional design or the ‘credo’ which informs politicsand law. The process of EU eastward enlargementhas undoubtedly enshrined minority rights in thiswider definition of European constitutionalism.

GWENDOLYN SASSE

Lecturer, London School of Economics and Jean Monnet Fellow, Robert Schuman Centre

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Neil MacCormick’s Two HatsLaw as institutional fact, sovereignty as institutional fiction

On 28 October 2003, Professor Sir Neil Mac-Cormick MEP visited the European University Insti-tute and delivered a lecture entitled ‘InstitutionalTheory and the Conventional Constitution’.

Famous in legal scholarship for assuming the mantleof Hartian legal positivism, and more recently for de-veloping the idea of ‘post-sovereignty’ and legal plu-ralism in the ‘European Commonwealth’, Mac-Cormick has been Member of the European Parlia-ment representing Scotland since 1999 and has re-cently been engaged as alternate member(Greens/European Free Alliance) of the ‘Constitu-tional Convention’ on the Future of Europe.

This dramatic transformation from legal theorist toparty politician is only an appearance; Neil Mac-Cormick has been involved in politics as a memberof the Scottish National Party for many years, as wellas being Regius Professor of Public Law and the Lawof Nature and Nations at the University of Edin-burgh since 1972.

The combination of legal scholar and politician is apath seldom trodden; it provides an interesting andquite unique test case for the transferability of theoryinto practice, especially as his direct participation inthe European political sphere emerges with his devel-opment of the idea of a plurality of institutional nor-mative orders in ‘Questioning Sovereignty: Law, Stateand Nation in the European Commonwealth’ (1999).

Given the political energy and currency which hasbeen invested in the ‘Constitutional Convention’ andits obvious topicality at the Institute, it was unsur-prising that MacCormick focused on the aspects ofthe latter. In an entertaining and instructive presen-tation, MacCormick took us through his under-standing and vision of European Union, a visionwhich appeared at the same time moderately ambi-tious yet strongly conventional. He listed with en-thusiasm and vigour some of the concrete proposalsand piece-meal institutional changes which might bewrought as a result of the Constitutional Convention:for example, transparent law-making through consti-tutional clarification, more effective parliamentarysupervision, and a full-time Presidency of the Euro-pean Council.

Yet he largely skirted the conceptual debates on the‘big questions’ of European integration – related tothe existence or not of a European demos, society, oridentity - making his vision appear not radical butpragmatic, promoting steps of incremental polity-re-formation in conformity with general liberal princi-

ples such as the rule of law and the separation ofpowers. This gave him the somewhat incongruousimpression of being a genuine enthusiast of the pro-ject of European Integration, yet in the manner of anAnglo-Saxon pragmatist - a far cry from the federal-ist visions of a Giscard d’Estaing or a Joschka Fisher. The absence of any conceptual analysis of popular

sovereignty or national self-determination within theEU- clearly central to his rejection of imposed state-sovereignty (the case of Union between England andScotland) - enabled his enunciation of these appealsfor the institutionalisation of new European norma-tive order to appear founded in common-sense andalmost effortless, in marked contrast to the oftenstrained and complex argumentations presented byEurophile (and Eurosceptic) scholars on the Conti-nent.

His key-word to symbolise this moderately ambi-tious vision was that of ‘suigenericity’, thereby avoid-ing the traps fallen into by sceptics and federalistsalike in terms of assumptions of unity or monism ininstitutional and social order, and enabling him to re-ject the idea that constitution necessarily equalsstate. Whilst labelling the EU as ‘suigeneric’ begs theimportant question of popular sovereignty and col-lective identity, it also resonates oddly with the ideaof law as institutional normative order- the centraltenet of his reformulated version of legal positivism,and the springboard from which he leapt into theproposals for constitutional reform.

Law as institutional normative order is advanta-geous, we are told, in that it enables us to make senseof non-state law (to which legal pluralists have drawnour attention since the turn of the last century) interms of a plurality of internal perspectives. Ofcourse, law as institutional normative order is only

Neil MacCormick

Institutional Theory 21

advantageous to the extent that we think that the‘laws’ of non-state institutions should have norma-tive force. Certainly we can argue that they do haveforce, but the extent to which they do is deeply con-troversial- it cannot be settled by conceptual fiat.

There seems to be something hidden in the agendaof law as institutional fact, which makes it almost ide-ological in its concealing of the institution as a nor-mative institution. Why, if only a ‘fact’, should weconsider it normative at all? MacCormick has arguedthat norms are often more capable of decisive actualdetermination than are facts. Using the example ofmurder, he shows that we can be much more certainthat murder is wrong than that x committed murderat such and such a time and place.

There is clearly no analogy in the field of the politi-cal, which might be defined as a struggle over thegeneral definition of ‘the ought’, especially as it is en-capsulated in constitutional form. Superficially,nothing in the agenda of legal positivism necessarilyconceals this. Famous reformers and positivists(think of Jeremy Bentham) have argued that lawshould be clearly discernible for the precise reasonthat it can then be criticised and eventually amendedor repealed. And there is nothing amiss with a legalpositivist contributing to the political debate thatplays a part in the future shaping of law – if his ar-guments are accepted politically, then he has con-tributed to changing the law; if not, he would not re-ject the new law as ‘law’, but would generally- speak-ing consider it to be valid. The finality of the law andthe autonomy of legal argumentation sound almosttrivial and uncontroversial, until we consider themove that is made in constitutional terms; termswhich potentially alter the fundamental lines of sov-ereignty itself.

In the latter case, the proposals are not just aboutchanging a substantive provision here or there, butabout the bases and forms of legal reasoning and po-litical argumentation and, where entrenchment is anissue, about the possibility of revision. If legal orderis perceived to be heterarchical rather than hierar-chical, the idea of reform all- the- way- up (or all-the- way- along) poses few conceptual difficulties forthe legal positivist. When we move to constitutions,however, there is a more obvious but perhaps muchdeeper problem: the constitution effects a represen-tation of social order within the polity that both pre-supposes and creates a political unity. It is not there-fore enough simply to transfer a positivistic concep-tion of the ‘people’ to the constitutional arena.

Aside from the constitution being a symbol rich inthe democratic legitimation of a polity, the represen-tation effected by a constitution not only opens upnew paths, but closes old ones. The question thenbecomes one of continuity or discontinuity, a prob-lem that the idea of law as institutional normative

order is ill-equipped to conceptualise. For Mac-Cormick, and others like him, a European constitu-tion should not be seen as a discontinuity. But if law- and especially constitutional law - is nothing more(or less) than institutional normative order as fact,there are no tools with which to see it as anythingother than a continuity. What is it then that the con-stitution represents, which was not represented be-fore? If nothing, then the act of institutionalisingnew forms of normative order becomes akin to a tau-tology.

To put the point bluntly, the idea of institutional nor-mative order is one rich in platitudes when it comesto analysing why ‘this’ rather than ‘that’ normativeorder. Armed with the positivists tool-kit, we canthus explain well why, for example, ‘The Charter ofRights’ should be clear, simple, and precise, but notwhy it should be at all. Similarly, the central debateconcerning the role of the constitution in Europeanintegration and a closer union among the peoples ofEurope is by-passed by assuming it all to be a ques-tion of institutional fact, thereby suggesting that thesecond- order question (why have a constitution atall?) is already answered. The legal positivist requiresa stronger theory of legitimacy if he is to avoid theconflation of law and constitutional law; a constitu-tion works as more than merely a device for clarify-ing a legal-institutional status quo.

These difficulties should not disguise the fact thatNeil MacCormick’s work has contributed immeasur-ably to enlivening the somewhat stale state of analyt-ical jurisprudence in the Anglo-Saxon world. His in-sistence on taking seriously the multiple layers oflegal authority in a ‘post-sovereign’ world and hisfocus on the plurality of internal points of view, miss-ing in Hart (and arguably Kelsen before him), hasconsiderably changed the jurisprudential landscape.His questioning of state sovereignty from this per-spective has opened the door to a far richer debateconcerning the relationship between state law andother manifestations of sovereignty exemplified bypopular sovereignty and national self-determinationon the one hand, and the European Commonwealthon the other; a door that, sadly, relatively few othersin the tradition of analytic jurisprudence seem tohave followed him through. Nevertheless, in stickingso rigidly to the positivistic mantra of law as institu-tional fact it seems difficult, even impossible, to clar-ify conceptually the new types of normative, sover-eigntist and social claims that are being made withregard to the emerging non-state constitutional lay-ers within and without the ‘European Common-wealth’, and which as an enthusiast of the Europeanproject MacCormick would perhaps do well to con-sider in greater detail with regard to the Europeanconstitution.

MICHAEL WILKINSON

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A brief survey of the media in the various MemberStates might lead one to conclude that, in terms of ac-cess to information, Europeans have ‘never had it sogood’. Digital stations now supplement traditionalanalogue television and radio services, terrestrial sta-tions compete with cable and satellite services, whileindividual access to the information cornucopia of theWorld Wide Web is rapidly expanding. These devel-opments bring into question the continuing need formedia ownership controls of the type found in manyMember States. Though some States principally relyon competition law to control excessive media con-centrations, many Member States have introducedcomplex rules which, inter alia, prohibit certain orga-nizations (political, religious etc.) from owning partic-ular media interests; impose ownership limits in spe-cific media sectors; and limit the accumulation of in-terests across two or more media sectors. The princi-pal rationale put forward for these restrictions is a de-mocratic one, namely, that for citizens to play a mean-ingful and active role in the political process they re-quire access to varied information and opinions froma diversity of sources. The reflection by the media ofdiverse views and opinions is also considered to havecultural benefits: facilitating integration in multicul-tural societies and helping to preserve and promotecultural diversity. Although fragmentation in mediaownership clearly offers no guarantee that the mediawill in fact provide such diverse information, the riskof bias or restricted coverage is likely to increasewhere media ownership is concentrated in a few pri-vate hands. Ownership controls tend, therefore, to bejust one element within a broader regulatory scheme,and are frequently complemented by specific contentrequirements and the provision of financial supportfor small media outlets or public service broadcasters.

The argument for relaxation of ownership controlsbased on the impact of new technology is, however,far from clear-cut, and it is important to examine whatis actually happening on the ground. There may in-deed be a greater diversity of media services andgoods from which to choose, but increasingly theseare owned by a limited number of ‘multimedia multi-national’ companies. Small, independent companiesare likely to struggle in this environment, particularlywhere there is market integration in the fields of pro-duction and transmission. These developments wererecognized by the Parliamentary Assembly of theCouncil of Europe in January of this year, whichnoted that media concentration was ‘a serious prob-lem across the continent’ and that in certain centraland eastern European countries a very small numberof companies were in control of the printed press.1 Inorder to address this issue properly we also need to

know how different people use the various media.Consolidation among the press and broadcasting sec-tors may, for example, seem less troubling if alterna-tive sources of information are available on the Inter-net. If, however, these sources are fragmented or dif-ficult to locate and individuals primarily rely on oneor two main sites sourced from the same broad-cast/press companies, then the democratic and cul-tural interests identified above may indeed be com-promised. Financial constraints can also severely re-duce the choices open to many people.

These developments clearly pose complex regulatoryquestions for the Member States. But do they also ne-cessitate action on the part of the European Commu-nity? Though it might be argued that control overmedia ownership is a matter best left to the MemberStates, particularly when one considers the very dif-ferent press and broadcasting traditions, national gov-ernments, for a variety of political and industrial rea-sons, may be either unwilling to address this issue ormay be actively engaged in deregulation. For this rea-son the European Parliament, from the mid-ninetiesonwards, has repeatedly called for Community inter-vention to safeguard media pluralism in Europe. In aresolution passed in September 2003, it reiterated arequest that the Commission prepare a Green Paperon media concentrations, with a view, ultimately, toputting forward a draft directive on the subject.2

It is probable that the Parliament’s resolution willhave kindled in the Commission a not entirely pleas-ant feeling of déjà vu, in that for many years it was ac-tively involved in drafting just such a directive.Though the Commission had a working documentready in 1997, the project was abandoned, in part be-cause of divisions within the Commission itself, butalso because of strong opposition from certain Mem-ber States that resented Community intervention inthis politically sensitive area.3 Even the Parliamentwas unhappy with the internal-market basis for theCommission’s proposal, which, in its view, improper-ly emphasized the economic rationale for Communityaction instead of more fundamental democratic andcultural reasons. It is, however, difficult to identify aTreaty basis on which a directive designed specifical-ly to promote these latter objectives might be adopt-ed. Some support might be gleaned from Article 151EC, the culture article, though this specifically ex-cludes any attempt to harmonize Member State legis-lation. The Legal Affairs Committee of the EuropeanParliament has suggested that one might instead relyon what is now Article 308 EC, the ‘stop-gap’ article,on the basis that the promotion of pluralism is itself alegitimate Community objective. Article 308 EC is not

Rethinking Community Competencein the Field of Media Ownership

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without its constraints, however, in that Council una-nimity is required to pass any measure, and the influ-ence of the Parliament is limited since it is affordedmerely a right to be consulted. Despite the difficultiesencountered in previous attempts to tackle this thornyissue, the Commission in its June 2003 Green Paperon Services of General Interest specifically soughtviews as to whether there was a need for Communityaction in relation to media pluralism.4

If the Community does decide to take action the chal-lenge will be not only to learn from the prior impasse,but also to produce a directive which is more thanmerely symbolic. In this regard it may be noted thatthe scope and focus of any measure will be signifi-cantly affected by its legal base. If media pluralism istaken as the underlying objective, along the lines indi-cated by the European Parliament, then a wide rangeof interlinking issues can potentially be brought intoplay, such as the independence of public servicebroadcasters or the ethical standards of journalists.Given the difficulty of agreeing specific Communityownership limits uniformly applicable across theMember States, the Commission is likely to consideralternative regulatory approaches. One approachwould be the adoption of a framework directive es-tablishing general objectives, which it would be theresponsibility of the Member States to realize, subjectto monitoring and control at Community level. Onthe one hand, such a directive would offer MemberStates a degree of flexibility; on the other, contrary toinitial appearances, it could ultimately prove a moredemanding mechanism for the realization of mediapluralism. Clearly, such an approach would not pre-clude the adoption of specific requirements in partic-ular areas, for example in order to address the poten-tial conflicts of interest which arise where an individ-ual with media interests gains political office.

The recent petition to the European Parliamentunder Article 194 EC concerning concentration in theItalian audio-visual sector raises the issue of mediapluralism in a rather different legal context, namely inrelation to Article 7 of the Treaty on European Union(‘TEU’).5 This provision authorizes the Council (in re-lation to a duly referred matter and with the assent ofthe European Parliament) to determine that there is a‘clear risk of a serious breach’ by a Member State ofone or more of the principles set out in Article 6(1)TEU and, in the light of that finding, to ‘address ap-propriate recommendations’ to that State. The Article6(1) principles include democracy and respect forhuman rights and fundamental freedoms. The pres-sure which can be exerted under Article 7 TEU on aparticular State is of an essentially political nature,though in extreme cases of persistent breach the sus-pension of all or some of a Member State’s Treatyrights is envisaged. The main thrust of the petition tothe European Parliament is that the existing situationin the Italian media should be referred to the Councilfor evaluation under Article 7 TEU, on the basis that

the degree of ownership concentration contravenes afundamental value of the European Union, namely‘freedom and pluralism of the media’.

A particularly interesting aspect of the petition is theway in which it frames its concerns in terms of Euro-pean citizenship, an approach that merits further con-sideration. It may, for example, be noted that underArticle 19 of the EC Treaty European citizens enjoyrights to vote in European Parliament and municipalelections in Member States where they reside but donot have nationality. In order for citizens to be able toparticipate meaningfully in these elections they requireaccess to varied information from diverse sources.Though political parties have an undoubted responsi-bility to inform citizens about their policies and pro-grammes, many individuals rely heavily on domesticmedia to provide them with relevant information andopinions. Whether or not one has access to this infor-mation may ultimately affect one’s willingness to vote.It is consequently arguable that a right to media plu-ralism, though not explicitly stated to be a citizenshipright in the EC Treaty, is nevertheless implicit in theright of EU citizens to vote in European Parliamentand municipal elections. The petition concerning theItalian media thus serves as a useful reminder that it isno longer possible to categorize media pluralism sim-ply or primarily as a ‘domestic’ or ‘economic’ issue.Rather, it is an issue that is central to the democratic le-gitimacy of the European Union itself.

RACHAEL CRAUFURD SMITH EUI Jean Monnet Fellow;Senior Lecturer in Law, University of Edinburgh.

1Parliamentary Assembly of the Council of Europe, Recommenda-

tion 1589 (2003) on Freedom of Expression in the Media in Eu-rope, available at http://assembly.coe.int/2 European Parliament Resolution on Television Without Frontiers,P5_TA-PROV(2003)0381 at para. 41.3 Harcourt, A. ‘EU Media Ownership Regulation: Conflict Over theDefinition of Alternatives’ (1998) 36 Journal of Common MarketStudies 369.4 European Commission, Green Paper on Services of General In-terest, COM(2003) 270 final at paras. 73-75.5Details of the petition and its sponsors can be obtained from

http://save-democracy.net/petition/index.html.

Rachael Craufurd Smith

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Chiara Bottici, ‘The domesticanalogy and the kantian Project ofPerpetual Peace’, in Journal of Po-litical Philosophy, December

Giuseppe Bronzini, HeidrunFriese; Antonio Negri; PeterWagner, (eds), Europa, costi-tuzione e movimenti sociali, mani-festoibri, Roma, Maifestolibri

Fabrizio Cafaggi, Quale armoniz-zazione per il diritto europeo deicontratti, Cedam, Milano

Colin Crouch, Patrick Les Galès,Carlo Triglia and HelmutVoelzkow, Changing Governanceof Local Economies: Response ofEuropean Local Prodiction Sys-tems, Oxford University Press

Colin Crouch, Postdeomcrazia,Roma, Laterza

Egnatio Danti, Les deux règles dela perspective pratique de Vignole1583, traduction et édition cri-tique par Pascal DubourgGlatigny, CNRS Éditions, Paris

A. de Streel, ‘The protection ofthe Europen citizen in a competi-tive e-Society: The new E.U. Uni-versal service Directive’, Journalof Network Industries, 2003, pp.189-223.

A. de Streel/R. Queck, ‘Un nou-veau cadre reglementaire pour lescommunications electroniques enEurope’, Journal des tribunaux –Droit européen, 2003, pp. 193-202.

Gérard Delille/Aurora Savelli(eds) Ricerche Storiche - RivistaQuadrimestrale: Essere popolo.Prerogative e rituali d’appartenen-za nelle città italiane d’anticoregime, Edizioni Polistampa,XXXII, 2-3

Gérard Delille, Le Maire et lePrieur. Pouvoir central et pouvoirlocal en Méditerranée occidentale(XV - XVIII siècle), Editions del’Ecole ds hautes études en sci-ences sociales, Paris

Erik O. Eriksen, Christian Joergesand Jürgen Neyer (eds), EuropeanGovernance, Deliberation and theQuest for Democratisation,ARENA, Oslo and EUI RobertSchuman Centre for AdvancedStudies, San Domenico

Christian Joerges/Gunther Teub-ner (eds), Rechtverfassungsrecht –Recht-Fertigung zwischen Privat-rechtsdogmatik und Gesellschafts-theorie, Nomos, Baden-Baden

Charalampos Koutalakis: Citiesand the Structural Funds. The Do-mestic Impact of EU Initiatives forUrban Development, Ant.N.Sakkoulas, Publishers Athens

Jean-Victor Louis/Assimakis P.Komninos (eds.): The Euro: Law,Politics, Economics, London: TheBritish Institute of Internationaland Comparative Law

Yves Mény, ‘The Achievements ofthe Convention’, in Journal ofDemocracy, Making Sense of theEuropean Union, Volume 14, No.4, p.57 - 70

Yves Mény, ‘Política corrupción ydemocracia’, in Miguel Carbonelle Rodolfo Vazquez (eds), Poder,derecho y corrupción, Siglo XXIEditores, Mexico, p.123 - 139

Recent Publications from the Institute

Johannes U. Müller, L’Associ-azione Amici della Musica e l’o-rigine delle istituzioni musicalifiorentine, Fiesole , Cadmo, 2003, 325 p.

Federico Palomo, Fazer dos cam-pos escolas excelentes. Os jesuítasde Évora e as missões do interiorem Portugal (1551-1630), Lisboa:Fundação Calouste Gulbenkian-Fundação para a Ciência e a Tec-nologia

Letizia Paoli, Mafia Brotherhoods.Organized Crime, Italian Style,Oxford University Press

John Peterson/Mark A. Pollack(eds.), Europe, America, Bush.Transatlantic relations in the twen-ty-first century, London/New-York: Routledge

Gianfranco Poggi, ÉmileDurkheim, Bologna: Il Mulino

Mark A Pollack, The Engines ofEuropean Integration. Delegation,Agency and Agenda Setting in theEU, Oxford University Press

Pong, S.-l, J. Dronkers/G. Hamp-den-Thompson: ‘Family Policiesand Children’s School Achieve-ment in Single- Versus Two-Par-ent Families’, Journal of Marriageand the Family 2003, 65:681-699.

Raffaele Romanelli, ‘Rapporto difine mandato’ inIl Mestiere di Storico, Annaleiv/2003 della SISSCO SocietàItaliana per lo Studio della StoriaContemporanea, Edizioni Libre-ria Dante & Descartes, pp. 9 - 29.

John G. Ruggie, The UnitedStates, the United Nations and theTransatlantic Rift, Annual Lectureof the Transatlantic Programme,12 May 2003, RSCAS Distin-guished Lecture Series, October2003.

Quentin Skinner/Bo Stråth (eds)States and Citizens. History, Theo-ry, Prospects, Cambridge Univer-sity Press

Bo Stråth/AnnaTriandafyllidou(eds.), Representations of Europeand the Nation in Current andProspective Member-States: Media,Elites and Civil Society. The Col-

lective State of the Art and Histor-ical Reports, European Commis-sion, Directorate General for Re-search, Luxembourg: Office forOffical Publications, EUR 20736,

Jan van der Harst: The AtlanticPriority. Dutch Defence Policy atthe Time of the European Defence

Community, Florence: EuropeanPress Academic Publishing.

Maarten Vink/Frits Meijerink,‘Asylum Applications and Recog-nition Rates in EU Member States1982-2001: A Quantitative Analy-sis’, Journal of Refugee Studies,Vol. 16, No. 3, pp. 297-315.

Jan Zielonka, Jacques Rupnik(eds.) The Road to the EuropeanUnion, Volume 1, ‘The Czech andSlovak Republics’, Manchester,Manchester University Press

Jan Zielonka, Vello Pettai (eds.),The Road to the European Union,Volume 2, ‘Estonia, Latvia andLithuania’, Manchester: Man-chester University Press

Jacques Ziller, ‘Existe-t-il unmodèle européen d’Etat pluricul-turel ?’ in P. De Deccker/ J.Y.Faberon (eds), L’Etat pluriculturelet le droit aux différences, Brux-elles: Bruylant, p. 231-245.

Jacques Ziller, La nuova Costi-tuzione europea, Il Mulino – Uni-versale Paperbacks, traduit du

français par Laura Segni.also forthcoming in French:La nouvelle Constitution euro-péenne, Paris, La Découverte,2003, collection Repères, 128 p.

Publications25

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RSCAS Mediterranean ProgrammeSixth Mediterranean Social and Political Research Meeting

Florence, 16 - 20 March 2005

Call to Run a Workshopdeadline: 30 January 2004

Scholars are warmly invited to send applica-tions to run a workshop at the Sixth Mediter-ranean Social and Political Research Meet-ing, 16-20 March 2005.

Up to fifteen proposals will be selected by aCommittee made up of members of theMediterranean Programme Scientific Boardand Staff.

Prospective applicants should read carefullyin advance the essential information on theMeeting’s web pages:

www.iue.it/RSCAS/Research/Mediterranean/mspr2005/

Workshop Topics

The focus of the Mediterranean Programmeof the Robert Schuman Centre for Ad-vanced Studies is on the Middle East &North Africa and on the region’s interac-tions with Europe.Topics should relate to Socio-political Stud-ies, Political Economy Studies, MigrationStudies.

Workshop Directors

Each workshop will be run by two work-shop directors who should complementeach other in terms of academic and nation-al backgrounds. See the web pages for fulldetails of criteria and the role of workshopsdirectors.

www.iue.it/RSCAS/Research/Mediterranean/mspr2005/

Applications and DeadlinesThe deadline for applications is:

30 January 2004Applicants will be informed

about selection by:end of April 2004

Applications should include:Completed application form

Abstract of the proposed workshopDescription of the proposed workshop

Abstract of the paper(s)of the prospective workshop director(s)

Curriculum vitae of theprospective workshop director(s)

How to apply:Guidance for writing proposalsis on the Meeting’s web pages.

Applicationsshould be addressed to:

The Organiser of theMSPR Meeting

preferably by e-mail to:medmeet@iue.it

and exceptionally by fax to:+39 055 4685 770

or by post to:

RSCAS - Mediterranean ProgrammeEuropean University Institute

Via delle Fontanelle, 19I-50016 San Domenico di Fiesole (FI) Italy

Tel: +39 055 4685 785

The Mediterranean Social andPolitical Research Meetings receive generous support

from theRegione Toscana

(Tuscan Regional Government)

The Mediterranean Programme has received financial support from:

CapitaliaCompagnia di San Paolo

Eni S.p.A.Ente Cassa di Risparmio di Firenze

Fondazione Monte dei Paschi di SienaEuropean Investment Bank

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Executive Committee of the Alumni Association:FRANCISCO TORRES, President, ANNETTE BONGARDT,Vice-President, CARLO SPAGNOLO, Secretary, MILICA

UVALIC, Treasurer, and AMY VERDUN, Member.

The EC is grateful to many alumni for their generousand enthusiastic mobilization and to the EUI Admin-istration and staff (of many departments and in manydifferent capacities) for their excellent cooperationthroughout this year’s numerous initiatives, as well asto some external institutions, such as the ECB and theEIB, for their support of our first conference.

Here follows a report of our activities:1) Accountability: This EC has made every effort to betransparent and accountable both to the GA and, fi-nancially, to the EUI (monitoring all expendituresupon request by the current EC). a. All GA and EC meetings (with all decisions taken)are available online together with an account of themost important activities.b. For the first time the EC could not count on theprofits of the shop, a most important source of rev-enues in the past, now reverting to the EUI. The ECreceived the EUI annual contribution (at €5000 slight-ly lower, in nominal terms, than the initial ten millionLire established more than fifteen years ago!), after ap-proval by the October 2003 GA of the Treasurer’s re-port (responsibility of the previous committee for2002). In spite of the loss of almost half of its revenuesand of the many activities undertaken in its first year(including outside services such as the design of an AAlogo), the EC still forecasts a surplus for 2003.

2) 1st EUI Alumni Conference: (see also p. )The pro-ceedings of the conference, with 30 alumni contribut-ing, 13 EUI professors chairing and discussing, twoguests and more than twenty other alumni attending,are to be published in 2004.

3) New services are already available for EUI alumniagainst an annual fee of €25 minimum (over 30 alum-ni have subscribed on the very first day)!a. Alumni electronic card that allows access to the EUIMensa and the Library and which may include pricereductions in some Florentine shops and restaurants,free entrance to Florence museums and other facilitiesavailable to EUI researchers and staff – first lot to besent to those who subscribed;b. Permanent e-mail addresses (@iue.it) for all alumniwho wish so – first lot already created;c. Housing exchange. Alumni will provide relevant in-formation and some advice to participants but actualtransactions are to be left to private contracts.d. EUI Online Community. After a long but very fruit-ful exchange of views between the EC and the EUI

Administration, President Yves Mény announced thelaunching of the new online community that will alsoinclude present and past staff, professors, as well as JMand other Fellows. Participation in the EUI OnlineCommunity is of course voluntary and separate fromthe AA and its services.

4) New appointments:a. Two new EC members of the Executive Committee:Milica Uvalic and Amy Verdun have joined the EC ofthe AA with the approval by acclamation of the Gen-eral Assembly. Milica was appointed Treasurer at the 4October EC meeting. b. Appointment of a Co-Treasurer: Brigitte Schwab, inher quality of co-founder of the Alumni Association,and after years as acting treasurer of the AA, was for-mally appointed Co-Treasurer of the AA with theunanimous approval of the last GA.c. Valérie Coppini has, since Bobbie Rawle’s departurefrom the EUI, been Acting Alumni Officer.

5) The institution of an ALUMNI PRIZE:The Executive Committee of the Alumni Associationhas decided "to create an Alumni Association Awardfor the best interdisciplinary Ph.D. thesis on relevantEuropean issues defended at the Institute, to be im-plemented ASAP, applying already to theses defendedin 2003. For the selection, a commission (whose com-position, possibly involving EUI alumni, will be decid-ed in due course) will be set up. President Mény wel-comed the idea of an AA Award, calling it a bridge be-tween the past and the future of the EUI.

6) Setting up of a working group on Statutes’ reform:Appointment of a Subcommittee composed, on thepart of the EC, by EC Vice President Annette Bon-gardt (chair) and Secretary Carlo Spagnolo, and opento any alumni wishing to participate, to present statutereform proposals to the EC. Achille Accolti Gil,Machteld Njisten and Chiara Zilioli have already indi-cated their interest in participating.

7) National chapters: Several informal local alumnichapters are already in place (see alumni chapter newson the web page and send us all your initiatives).

8) New logo of the AA: Please visit the alumni web siteand see the new logo currently in use and a possible al-ternative. Give us your opinion.

Please keep in touch with us (alumni@iue.it) and withall of the Association’s activities via its constantly up-dated web page (http://www.iue.it/Alumni/).

FRANCISCO TORRES

President of the EUI Alumni Association

Report on Recent Activities

EUI Alumni Association

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3 October 2003 – morning

Opening: YVES MÉNY (EUI President)Keynote Speaker: PAUL DE GRAUWE (U. Leuven andRSC, EUI)

Session 1: Democracy and Governance in the Euro AreaChair: HELEN WALLACE (RSC, EUI)

Politicizing EMU: the democratic deficit and the questfor a European citizenship statusOliver Schmidtke (U. of Victoria)EMU and EU GovernanceFRANCISCO TORRES (U. Católica and Bank of Portugal)

Comments: STEFANO BARTOLINI (SPS, EUI); NEIL

WALKER (LAW, EUI) SVETLOZAR ANDREEV (CSD, U.Westminster) and DAVID NATALI (SPS, EUI). Authors’ replies and general discussion.

Session 2: The ECB between Growth and StabilityChair: COLIN CROUCH (SPS, EUI)

The ECB between Growth and Stability. Macroeco-nomic Challenges in the Euro-Era: between Job Cre-ation, Economic Growth and Monetary StabilitySIMONA TALANI (Bath University and LSE)The “Brussels Consensus” on Macroeconomic Stabiliza-tion Policies: A Critical AssessmentROBERTO TAMBORINI (U. Trento)Stability and Growth: the Role of Monetary Policy andOther Policy Actors in EMUBERNHARD WINKLER (ECB)The Past and Future of the Stability and Growth PactAMY VERDUN (U. of Victoria)

Comments: MARTIN RHODES (SPS/RSC, EUI); ELISA-BETTA CROCI ANGELINI (U. Macerata). Authors’ replies and general discussion.

3 October 2003 – afternoon

Session 3 Institutional and Legal Arrangements and the EuroChair: Bruno De Witte (LAW/RSC, EUI)

Common Currency and National ConstitutionsANNELI ALBI (U. of Kent)The Convention's Impact on the Euro and the Union'sInstitutional StructureCHIARA ZILIOLI (ECB)Protection of the Euro and Hungarian National Cur-rency BanknotesPÉTER MUNKÁCSI (HPO, Hungary)The Role of Standards in Governing Financial Markets'StabilityMARIA CHIARA MALAGUTI (ECB and U. Lecce)Comments: ALESSANDRA CHIRICO (EUI), ROSITA

BOUTERSE (AMAJURIDICA), PEDRO MACHADO

(ECB). Authors’ replies and general discussion

General Assembly of the EUI Alumni Association –TheatreYves Mény addressed the Assembly. Francisco Torresreported on activities.

Alumni Conference Dinner: Loggia inferiore, Badia

1st EUI Alumni Conference on

EMU: Political, Economic, Legaland Historical Perspectives

Fiesole, 3 and 4 October 2003Support: European Central Bank and European Investment Bank

28

Jürgen Krüger, Francisco Torres, Annette Bongardt,Yves Mény and Bernhard Winkler

Barbara Curli, Renzo Daviddi and Pompeo Della Posta

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4 October 2003 – morning

Session 4: Economic and Financial IntegrationChair: RICK VAN DER PLOEG (ECO/RSC, EUI)

The New Economy and Economic Policy in the Euro-zoneDARIO TOGATI (U. Torino)Fundamentals, Portfolio Adjustments and Framing:What Can Explain the Behaviour of the Dollar/EuroExchange Rate?POMPEO DELLA POSTA (U. Pisa)The transformation of Finance in EuropeERIC PERÉE (EIB) and RIEN WAGENVOORT (EIB)Exchange Rate Regimes in the Western Balkans andtheir Evolution towards EMUMILICA UVALIC (U. Perugia) and RENZO DAVIDDI (Eu-ropean Commission)EMU and the Accession Countries: Who Should Walkand Who Should RunCHRISTINA MARIA LOLI (ECO, EUI)Comments: GIANCARLO CORSETTI (ECO/RSC, EUI);ANNETTE BONGARDT (U. Aveiro), JENS HOIBERG-NIELSON (Carnegie Asset Management). Authors’ replies and general discussion.

Session 5: Looking back to European Monetary Inte-gration: what Lessons can we draw?Chair: ARFON REES (HEC/RSC, EUI)

European Monetary Cooperation in the BW Order(1947-58). Reflections on the Origins of Post-Cold WarTensions between the US and EuropeCARLO SPAGNOLO (U. Bari)Monetary Regionalism in Historical Perspective: EarlyEEC Planning for Monetary UnionBARBARA CURLI (U. Calabria)

4 October 2003 – afternoon

Ceart go leor – Ireland, the UK, the sterling area andEMU MAURICE FITZGERALD (Loughborough U.)The Euro as World Currency: Past Plans and CurrentDebatesHUBERT ZIMMERMANN (Cornell U.)Comments: DAVID ANDREWS (RSC, EUI). Authors’ replies and general discussion.

Discussion Panel: EMU and EU Governance:the Challenges AheadChair: MICHAEL ARTIS (ECO/RSC, EUI)PHILIPPE SCHMITTER (SPS, EUI), GIANCARLO

CORSETTI (ECO/RSC, EUI); JÜRGEN KRÜGER (Euro-pean Commission).General discussion and panel members’ replies.

Concluding remarks and discussion of practical ques-tions – paper revisions, publication, etc. – with all par-ticipantsFRANCISCO TORRES, AMY VERDUN and HUBERT ZIM-MERMANN

For papers and publication of the conference pro-ceedings (editors: FRANCISCO TORRES, AMY VER-DUN, CHIARA ZILIOLI and HUBERT ZIMMERMANN),please visit: http://www.iue.it/Alumni/1stAnnual-Conf.shtml

The proceedings are to be published in 2004. andmay be presented at the next alumni weekend.

Annissa Lardjane, Amy Verdun, Susan Senior

Anne-Laurence Faroux, Oliver Schmidtke, Rosita Bouterse

New

s

At the 5th European HistoricalEconomics Society meeting heldin Madrid in July the Gino Luzza-to Prize was awarded to formerEUI researcher Dr GERBEN

BAKKER (HEC 1997-2001) for histhesis Entertainment Industri-alised. The Emergence of the Inter-national Film Industry, 1890-1940. Another former researcher,LUCIANO AMARAL (HEC 1995-2003), was among the three final-ists for his thesis How a CountryCatches up: Explaining EconomicGrowth in Portugal in the Post-War Period (1950s to 1973).The Gino Luzzato Prize is givenevery second year for the bestdoctoral dissertation in that peri-od on topics relating to the eco-nomic history of Europe. Gerben

Bakker is currently Lecturer atEssex University Business Schooland Luciano Amaral lectures atthe University of Lisbon.

Dr OLGA GIL (SPS) was awardedthe Annual Prize of the Aso-ciación Española de CienciaPolítica (AECPA). For her bookTelecomunicaciones y Política enEstados Unidos y España (1875-2002): Construyendo Mercados.This book is a substantially re-vised version of the PhD thesis,directed by Professors ColinCrouch and Jacint Jordana anddefended at the EUI in November2000.

Dr Gil is Invited Reseacher, Cen-tro de Estudios Avanzados enCiencias Sociales, Fundacion JuanMarch, Madrid

Dr LUÍS DE SOUSA (SPS) wasawarded the Gulbenkian Prize foryoung Portuguese researchers(‘Programa Estímulo à Investi-gação’).

Luís de Sousa received one of thetwo prizes in the Construction ofthe European Union section,with a proposal entitled ‘O(s)Povo(s), O Parlamento e a Con-stituição: O Futuro da Represen-tação Democrática na Nova Con-strução Política da União Eu-ropeia’.

Dr de Sousa is a Researcher at theCIES - Centro de Investigação eEstudos de Sociologia (ISCTE,Lisbon).

News

Prizes ...

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Gerben Bakker Luís de Sousa

Dr Senada Selo Sabic (SPS) to-gether with Haris and Emir arehappy to announce the birth ofTimur on 16 February 2003.Timur is Emir’s new baby brother

Dr Hans-Joachim Knopf (SPS)and Gisela are happy to announcethe birth of their third child EmilySusanna on 22 June 2003 in Kon-stanz

Dr Susan Grattan (SPS) and DrDaniele Caramani are happy toannounce the birth of theirdaughter Elena May in New Yorkon the 8th of June 2003

... and new Arrivals

Visitors31

Italian Mininster Giuliano Urbani and Yves Mény

Italian Presidency EventMeeting of European Ministers of Culture

On Wednesday, 1 October, the In-stitute received 25 Ministers ofCulture from current and futureMember States of the EuropeanUnion, hosted by the Italian Min-ister of Culture, On. Giuliano Ur-bani.

The Ministers were amongst thefirst to visit the refurbished sec-ond floor of the Institute Library .

Seminar by 2003 Nobel Laureate Professor Robert F. Engle

On 14th November the Department of Economicswelcomed Professor Robert F. Engle of Stern Busi-ness School-NYC, who had been awarded TheBank of Sweden Prize in Economic Sciences inMemory of Alfred Nobel “for methods of analyzingeconomic time series with time-varying volatility(ARCH)”.

In a special seminar Professor Engle presented newresults on modeling time-varying volatility under thetitle “Dynamic Conditional Correlations – SomeNew Results”.

Helmut Lütkepohl and Robert F. Engle

Visitors

The Ambassador of the Republic of Ireland, John Francis Cogan(second from the right) presents donation of Irish books

Book Donations

On Wednesday 19 November, the Irish Ambassador,John Francis Cogan presented a collection of booksoffered by the Irish Government to the EUI Library.The ceremony took place on the upper floor of theLibrary.

Earlier this year, the Institute Library also receivedan important gift from the Greek Government ded-icated to extending the Greek collection.

In previous years several of the Member States hadmade equally generous gifts.

Library Renovation

The extensive renovation of the Institute Library at the Badia is making good progress. The top floor with its new spacious reading room has just been inaugurated (see next page).

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EUI Review

An initiative of the European University

Institute

Via dei Roccettini, 9 I-50016 San Domenico,

Italy

Fax +39 • 055 46 85 283e-mail: publish@iue.it

http://www.iue.it/

Editors:European University Institute

Acting Editor:Brigitte Schwab

Design:Paolo Romoli and Danny Burns

Contributors:Miriam Aziz

Hervé BribosiaKarine Caunes

Rachael Craufurd SmithChristian JoergesPeter Kennealy

Yves MényJohn Morijn

Machteld NijstenGwendolyn SasseFrancisco TorresHelen Wallace

Michael WilkinsonJoachim Wuermeling

Translations byIain Fraser

Printed in Italy in December 2003

Editors’ Note

Views expressed in articles pub-lished reflect the opinions of indi-vidual authors and not those ofthe Institute.

The New Library