Ποιειν Και Πραττειν - create and do

The Constitutional Treaty: the political heritage of Europe

After the French, Dutch, Polish and possible British referendum for the ratification of the Constitutional Treaty of the European Union

To start with, the ratification process – either by vote in parliament or through a referendum - is not about a constitution but about a ‘Constitutional Treaty’: an agreement between citizens of Europe and 25 member states.

The Constitutional Treaty merges the Maastricht Treaty and the Charta of Basic Rights.



US state attorney: “no, this Constitutional Treaty is not a constitution. For one, it is too long (400 pages), contains policy matters with regards to social and economic affairs which will not stand up in court and thereby deprives the basic text of its meaning. Secondly, the US Constitution is clear and understood by everyone. It has stood up to changes now for more than two hundred years. Thirdly, the American constitution stipulates what Rights of every citizen must be respected by the state e.g. freedom of speech and everyone being equal.”

European constitutional expert: “this is exactly the important point: it is not yet a constitution but an effort to bring clarity into European affairs. Right now, the European Union is governed by many, often confusing or even contradictory texts. It is also clear that the European Union is not a state but more than just an economic and social union of 25 member states. So let Europe have its own text that expresses best its own desire for governance according to what everyone can agree upon.”


Some initial remarks

- no one makes the claim that this ‘Constitutional Treaty’ is a constitution

- the ‘sui generis’ (uniqueness) of this ‘Constitutional Treaty’ suits indeed the need of the member states to know how much sovereignty they are willing to give up to make a common rule possible, while this agreement between states incorporates now an agreement between all to respect the Basic Rights of every citizen

- the American Constitution is indeed a model worthwhile to think of when drafting an own constitution. However, as pointed out by James Boggs in his book ‘the American Revolution’, the flaws of the American Constitution became only noticeable when it was implemented. The Southern States counted everyone in their population, including the Black people, in order to gain more seats in Congress when in fact these Black people were not treated as being equal. As a matter of fact, the Southern States claimed power on the basis of people who had no right to vote. They were slaves. Consequently that issue was not resolved even after the Civil War for the holding of slaves may have been abolished, but racial discrimination continued until the days of Martin Luther King and Malcolm X. and discrepancies in voting till today.

Contrary to the claim that the American Constitution is clear to everyone, just the last Presidential election 2004 in the United States stirred up again the question whether or not the ‘electorate college’ should be abolished or not. Already the 2000 vote between Gore and Bush showed that someone could win the election through the ‘electorate college’ even if he did not win the popular vote. To remember, Gore had won the popular vote while Bush gained through the victory in Florida in 2000 and in Ohio in 2004 the critical number of votes in the ‘electoral college’ to win the presidential election. Bush had gained in 2004 also the popular vote over his candidate John Kerry. Indeed the very existence of the ‘electoral college’ expresses in the American Constitution a deep seated fear and mistrust in people themselves as if they would not be capable of making rational choices. It is an instrument of power to ensure that people are kept in a ‘non-political’ frame of mind.

Consequently the European debate about the ‘Constitutional Treaty’ should concentrate much more on implementation rather than arguing right now what this text contains or not. Here it will be crucial to foresee and to anticipate, but also to demand and to bring about active citizenship so that the voices of the people are heard. This shall require a European ‘public opinion’ and the possibility of perceiving what are European and not just particular national or even regional-local interests.

For such a critical implementation process an upgrading of the European debate is needed and a process of implementation that will mean for all a ‘learning process’. It has to be made possible by the European method of implementation based on ‘cultural consensus’ and respect for ‘cultural diversity’ while ‘equality of every citizen’ is achieved not merely with regards to the relationship citizens have to European Institutions, but also on how they access, deliberate and decide over the distribution of resources made available on account of the European Union gaining in ‘extra value’ as it manages to strengthen its cohesion and becomes just in terms of equality not only between citizens but also regions and cities.

Indeed, the vision of Europe has been a realization that without dialog and subtle but important linkages between people in order to uphold the inherent human and cultural values in everyone, there will be no ‘quality of life’ worthwhile speaking of. It is an adoption of a ‘friendly attitude’ towards the world so that its people can be open and warm to one another while understanding the needs and plights of others not living under same or similar circumstances as Europeans do with their open borders. The decisions taken, therefore, along this path of ‘cultural adaptation’ of nations and member states to the European integration process will make up the ‘political heritage’ of Europe. It shall influence the interpretation of the ‘Constitutional Treaty’ and show in practice how European Institutions will evolve in face of past mistakes, present challenges and an unknown future.


Europe under way

Kafka compared one language (French, German, Dutch, English, Polish etc.) to people who want to travel but while some people are right away ready, others are still packing. While waiting for the others to come with their packed suitcases, they remember that they have forgotten something: a toothbrush, a favorite photograph, the keys of the house etc. So they put down their suitcases and run back to their homes in order to fetch what they are missing. This is why people will never leave.

Europe is by contrast under way. It has become a political union with a set of own institutions, the most important ones being the ‘Council’ bringing together the member states, the European Parliament (an expression of future parliamentary rule in Europe as ‘the’ expression of democracy) and the European Commission (the Executive of Europe while at the same time the mediator and administration for both the Council and the Parliament). Besides these three institutional set-ups, there is the Committee of the Regions and the Committee of Social and Economic Affairs whose opinions are taken into consideration when European directives and regulations are worked out within this setting.

After Delors, Santer, Prodi and now Borrosso as Presidents of the European Commission, there can be seen one deep flaw in the governance of Europe. All of them are appointed by the member states, more specifically by the prime ministers or chancellors of the respective governments. The accountability to this power within Europe has made member states desiring more or less not so powerful presidents so as to leave the political stage free for national leaders. After 9/11 Blair, Chirac and Schroeder all went individually and only for their country to the United States to declare their solidarity with the American people, but not President Prodi. Europe does not have a single voice or anyone with a clear mandate to govern Europe because of having been elected by the people. The ‘electoral college’ in the United States is formed in Europe by the governments of the 25 member states. This power is most disconcerting as it has blocked any reform of the European Parliament and of all other European institutions. The Constitutional Treaty as proposed, addresses these and other issues but does not solve them. Hence it will be a matter of a future Constitution to resolve the issue of accountability and transparency of decision making at the top. It will require upgrading the European Parliament into an institution which can and does issue European Law and where financial accountability shall be secured. Right now, as shown by the compromise the 25 Finance Ministers have reached despite the existence of the ‘stability pact’, the member states can give themselves a leeway to deal with their respective financial difficulties e.g. the national debt exceeding the 3% limit. They demonstrate daily what not abiding by European law really means.

Europe has been praised in one main sense: to have overcome Nationalism. To the latter is attributed not merely a narrow viewpoint, but what made Europe enter conflict after conflict with the outcome being First and Second World War. So terrible was this experience that ‘unification’ meant overcoming former border disputes and enemy provoked hostilities. It is, therefore, quite worrisome when decentralization and democratization of Europe’s way of governance is taken as an opportunity to re-nationalize European programs while national, regional and local administrations and corresponding political authorities never feel fully obliged to implement EU laws and directives. This has made the European process both cumbersome and even more so obscure. Also political authorities cannot plan anymore their actions even when EU funding has been approved. Unfortunately ‘flow of payment’ has become conditional to ever tightening of financial control and therefore unpredictable if the money will arrive in five months or in two years, if ever.

Indeed the risks of partnership with everyone depending upon all others upholding the standards of ‘Good Practice’ have become that much greater while the stiffer financial control slows down the process so much that risk taking becomes a blind trust in the process, if not an unlucky gamble . Money is no longer handed out up front since authorities ought to pay first and then claim the amount they spend from the European Union according to a process that foresees going first through a national financial control and then only through the managing authority of the program, a managing authority not equal in authority to that of the European Commission and therefore not obliged to pay if it does not receive the funds from the European Commission. So aside from Europe having a problem of ‘morality of payment’ (real work done but not paid so that political authorities are forced to exploit expertise without any proper condition of payment) and ‘misuse of funds’ (corruption in the form of accounting tricks and money not absorbed because actions claimed were never undertaken), there is the high risk of financial control in answer to these and other problems to stifle actions and the ‘learning process’ meant to be brought about by the implementation process.

The European Commission has been hit as well. In many cases it is understaffed e.g. the Seveso directive designed to minimize industrial risks is in the sole hands of one expert. Speaking about crucial matters like ‘civil protection’, this unit of about 32 people were involved in coordinating all the relief work for the Tsunami victims but when the responsible Commissioner was asked about what Europe can do in face of such a disaster, he spoke to the Press while on holidays, that ‘yes, the European Union must create an emergency unit to coordinate all relief work’. He had never heard about that unit lost in the Environmental section even though it deals with matters belonging to the Industrial, Legal (Interior) and Social Affairs (due to the involvement of the Civil Society: volunteers) sections of the Commission. Prodi did try to reform the European Commission after 1999 but what happened was that some of the most innovative people were sidelined while the efficiency of the Commission was crushed by the wish for more control rather than encouraging innovative capacities. The latter depends upon the Commission remaining in dialog with the various projects it initiates through its programs in order to constitute a learning process. The very absence of such a dialog means exactly this: citizens of Europe do not feel to be participating in the learning and adaptation process the European Union desires with regards to the Information Society.

However, it was consensus during the European Convention that all of these problems were addressed. As a matter of fact, speaker after speaker underlined this one outstanding fact: never before had the problems of the European Union been addressed so directly and clearly than through the European Convention called upon to draft the proposal for a ‘Constitutional Treaty’.

Therefore, to come back to Kafka, while citing his example of language as a point of entry into what constitutes Europe’s literary and cultural heritage, it should not be forgotten that Kafka personally had a fear of commitment especially to a woman. Repeatedly he came close to marriage, to passing that barrier at a border and by crossing over to stand up and to declare his love for that woman so that out of that commitment love would become an embodiment of an institution and more so it would show that here two people care for one another. Kafka never entered such a bond.


The 'no' voters

Those who advocate in France, Holland, and also in other member states, including Poland and Great Britain although a special case, to vote ‘no’ in the upcoming referendum remind one of Kafka. Now that ratification and therefore commitment to Europe is becoming serious not only for their governments but for each and every citizens, they develop apprehensions, fears and even serious doubts about this Constitutional Treaty. It is expressed in the fear that once ratified, this Constitutional Treaty will be most difficult to change or to make improvements. They also fear that this Constitutional Treaty gives too much power to the member states, thereby they feel exposed, left alone or without alternatives to challenge such power as laid down in the future rules by which European governance shall unfold. More so, they make the ratification into an either/or choice about how the future of not merely Europe but their lives shall be determined by forces they have apparently no control over. On top of it there are the political activists from all spectrums of beliefs and notions about how to rally masses of people into believing what is the case. They want to transform a ‘no’ vote into a new kind of negotiating power about a different Constitutional Treaty and about a political Europe they have imagined in the first place and not what Europe has become as a result of its own deliberation process. There may well be behind a potential ‘no’ vote the coming together of the disenchanted ones with Europe altogether. They prefer an unknown future to a cumbersome process difficult to comprehend even though Europe has by now allowed ten new member states to enter May 1st 2004 and proceeded to embrace Rumania and Bulgaria while having taken up negotiation talks with Turkey. There is in the ‘no’ vote also the fear of Europe becoming too big and too much an embrace of geopolitical strategies as may be wished for by the Americans but which leaves Europeans in doubt about their future roles in the world. The ‘unknown factor’ by a disturbing present filled with bad news from Afghanistan, Iraq and elsewhere and a constant media spin on the negative leaving the positive side unarticulated due to a lack of follow-up may intensify the fear of an ‘unknown’ future. Certainly there will be many quick interpretations be spread by the media once especially the result of the French Referendum has come in after May 29th, but the political heritage will depend on two things: was the apprehension of the ‘no’ voters correct and therefore they were right in saying first ‘no’ in order to say ‘yes’ more firmly at a later stage if their fears and arguments against the current Constitutional Treaty are heeded by all member states and EU leaders, experts, Commissioners etc.? were all the arguments heard for a ‘yes’ vote or where does lie the true difference in this ratification process?

Answers to the ‘no’ voters

1. possibilities of changing the ‘Constitutional Treaty’ should consider two aspects: first of all, the European Convention has shown a modus vivendi can be found by which amendments or other substantial changes can be made in due process of deliberation and special consultations in the form of dialogs with Civil Society, member states and Commission; secondly, the fact that this is not a constitution, but a ‘constitutional treaty’ shows this is the most realistic way to approach the future of Europe which will require at some point a constitution.

2. the ratification process involves the freedom of member states to decide whether or not they do it per referendum to let citizens become knowledgeable of the Constitutional Treaty through debate or else to apply representational logic in letting the various parliaments decide. Important is this freedom and digression from just one way to ratify the Constitutional Treaty. It is consensus that the referendum is a more democratic way but due to the freedom in digression it will be important for all those participating in a referendum to relate to those member states which have already ratified the Constitutional Treaty. For ratification becomes then a matter of transsensitivity; while things are not equal, the expression of the free will being show of respect with regards to the other member states and their citizens. Hence a referendum should not be distorted as an ‘either/or’ choice but perceived as a way of giving notification that Europe can continue to be on its way of integration according to the best of everyone’s abilities.

3. Ratification is also not about gaining or not a new bargaining position in order to negotiate anew what should be or not in such a ‘Constitutional Treaty’. There is a time for everything. The European Convention did what it could to alter the old fashioned style of politics based on negotiations. Deliberations based on the consensus of everyone means a progressive method when it comes to adopt a position after having heard all divergent opinions. The outcome of the European Convention is a proposal for all texts to be combined in order to form one common framework allowing for the European method to work through the process as a new style of political deliberation and dialog prior to making decisions. Thus ratification is about asking for the opinion of everyone whether or not this process is satisfactory enough so that Europe can agree on one common framework and go ahead within such a common framework. It is about getting the political orientation of one simultaneous act that all agree that this is important for the next step. Not more, not less is asked, namely to give notification that such a common framework can now come into existence provided everyone agrees.

4. The European methodology of working and living together is looking for freedom everywhere and this means upholding dialog as basis of such a freedom since it contains the possibility of questions and answers without the answer being taken as an absolute. Adopting the latter would stop the dialog and transform the European debate into a mere imposition of someone’s concept upon everybody else. The advocates of the ‘no’ vote in the referendum make this mistake. They wish a constitution that determines an idealistic future as if already the present model of society they want and ignore thereby the need not to determine the future, but to open up everyone to such a potentiality. If that potentiality is to become real, then there will have to be a ‘common framework’ in place. This is why a key factor of the ratification process has to be the ‘political’ affirmation that such a cultural consensus exists throughout Europe, namely that all want to carry on with the deliberations about how to govern in respect of now the Basic Rights and in Agreement with 25 member states. That is not much, but also not little. As a matter of fact it is a huge achievement only to be acknowledged once the political difference to all previous forms of governance is perceived and made possible by such ratification of 480 million people. The Constitutional Treaty may not have been explained well enough by the press or politicians but then historical decisions are often made without either of them realizing it when they are made. Ratification is a historical decision since what is being asked for is a common agreement which will have huge consequences for the future once given by all 25 member states. Thus the referendum is clearly a vote of confidence and trust in Europe and this not on the basis of some arbitrary decisions but by declaring to be willing to enter and to clarify further the already existing common framework to make possible European governance.

5. The common framework as laid out by the Constitutional Treaty foresees the need to keep apart Basic Rights and policy matters. What some ‘no’ voters fear and argue against, is that ‘policy matters’ cannot be discussed i.e. be determined by the citizens, but this confuses the need of any political implementation process to safeguard Citizens’ Rights against abuse of power with matter of substance to which different institutions, member states, individual governments, and citizens in general have to answer to differently when asked for in the process. As a matter of fact the Constitutional Treaty does guarantee that citizens are asked to voice their opinions both directly and indirectly before taking a stand. Here citizens’ participation is a key element of democratic practice. At fault is not the Constitutional Treaty for its very free spirit depends upon what is really put to practice i.e. implemented. Besides the potential ‘no’-voters do not seem to recognize that this is not merely an agreement between all citizens in Europe but between citizens and member states about how European Institutions should be formed out of a combination of these two factors or levels of approaches to European politics: citizens in dialog with their governments and governments to governments as a continuation of member states within such a European Union. There has to be opened up a transition period after which citizens enter a direct dialog with European governance made possible by reforming European Parliament. Clearly what is needed to start the process of deliberation and clarification prior to be able to draft a constitution is such an agreement that allows everyone to express different opinions i.e. to disagree. Therefore, ratification of the Constitutional Treaty is basically being asked ‘to agree so that we can disagree’ as to what is most important for the future of Europe. It is the most basic departure point of democracy, namely to give the other the freedom to have another opinion to mine. As a matter of fact such is the life of democracy that without disagreement it would be not only boring, but a risk that because of lack of agreement that we can disagree, someone or a group of people would want to uphold but one truth and everyone becoming just a mere follower of that truth. The frightening thing is that often the media paints disagreement as lack of unity and therefore already a political crisis. In the past disagreement was silenced if not by dictatorship, then by war. The real difference to that horrible past and of significance to the immediate future of Europe is therefore the ratification of the ‘Constitutional Treaty’. To say ‘yes’ means to rely and to give ‘political’ weight to the political heritage Europe has gained since the Maastricht Treaty. The Constitutional Treaty will allow everyone to disagree and to voice different opinions because there exists now one common framework based on one agreement as expressed by the ratification of this Constitutional Treaty.

If a ‘no’ would prevail due to a failed referendum in France, then in Holland, and perhaps later in Poland, only a confusion of disagreements would exist and not this one basic agreement. No one will know anymore after such a failure where to seek and to find some common agreement. It will be a situation making no sense and to which no political logic can be applied.

In doubt will then be whether or not Great Britain sees the need anymore to hold a referendum at all. For it will make no longer sense to ask the British people to say ‘yes’ to something others disagree about in the first place and without agreement on anything. The British wisdom is to see whether or not all other member states and their citizens agree on something common, on something that will allow them to disagree without anyone then in a position to dictate his or her opinion upon the other. This then entails the build-in guarantee of freedom for everyone.

So only if the ratification process goes positively ahead, there is certainty that Europe shall be ruled by the basic premise of ‘we agree that we can disagree’.

Nothing short of a ‘yes’ to this however flawed Constitutional Treaty will satisfy the democratic demand of not merely the British people, but of all people in Europe. Only a ratification as a show of trust would give sense to joining up and making something work without fear of an ‘unknown’ future. It would then not be determined by some neo-liberal or other model since such a common agreement would guarantee the working out of differences on how we all can make Europe more just and in solidarity with the rest of the world, thereby more attentive to the needs of all people.


Hatto Fischer


Note: this article was published originally by heritageradio under

Constitutional Treaty

Category: Reflections 25.5.2005

By: Hatto Fischer, Athens



^ Top

« EU governance | EU law »