‘The beginnings of this book go back to 2003 when the editor asked the contributors and several others to participate in an expert meeting on the Draft Treaty establishing a Constitution for Europe, which at that time had just been made public. Subsequently, all went to work and towards the end of 2004 most participants at the meeting had completed their contribution to the book. During the editing process, however, something happened which nobody – least of all the editor – had taken into consideration. In May and June 2005 – as we all know – the French and Dutch people rejected the Draft Treaty in a referendum, thus bringing the constitutional process to a sudden standstill.
The editor asked the contributors to revise their papers in such a manner that they would also answer the question:
• What should be the basic legal framework of institutions of the European Union in the near and not-so-near future? In other words: what would be essential constitutional elements of a modified Treaty establishing a Constitution for Europe? (Never mind whether it will be called a ‘Constitution’ or not.)
The result is the book you are holding in your hands. We hope that it will be of some use in thinking through the question that should be – but is not – on everyone’s mind because it is a question of invaluable importance for the future of Europe: What should become of the European Union?
All in all, you will find here a collection of eleven essays on various aspects of that question. For clarity’s sake, the essays are divided into four parts.
Part I is about what many constitutions, including the Draft Treaty, start with: the preamble. More specifically, it is about the issue, heavily contended in the recent discussion on the Draft Treaty, whether the preamble should contain any references to God or religion. Paul Cliteur’s essay on God and Religion in the Preamble of Constitutions starts off this book with a thorough discussion of this issue and defends a laicist constitution, radically separating state and church.
Part II comprises four essays, which, from very different perspectives, deal with the overall constitutional structure of the European Union. In his paper United we stand, divided we fall, a Case for the United States of Europe, Andreas Kinneging makes a case – as the title already leads us to suspect – for a United States of Europe, along the lines of the case made by the American Founding Fathers for a strong United States of America. Likewise, in his essay Europe of the 21st Century and the Fears and Formulae of the 18th and 19th Century, Paul De Hert also pleads for the creation of an American style federal state in Europe, but for very different reasons. He is mainly concerned with balancing the powers of the Union and of the national governments, in order to ensure the liberty of the individual. From this same perspective he also discusses and criticizes the Charter of Fundamental Rights. In the third contribution to the second part, in a paper entitled Pluralism and European Unification, Hans-Martien ten Napel explores what a pluralist Christian vision of a good European constitution looks like, and assesses the extent to which the Draft Treaty is consistent with this vision. He concludes that the demands of pluralism are insufficiently honoured. Sophie van Bijsterveld’s essay on Governance in the EU: Democratic Equality and the Separation of Powers concludes the second part. It looks at the developments in the European Union from the point of view of two principles which are also central to the US Constitution: the separation of powers and democracy, with regard to both formal and informal governance of Europe.
Part III subsequently singles out the principle of democracy for further discussion. Everybody knows that, traditionally, the democratic image of the decision-making processes in the European Union and its predecessors is rather questionable. Perhaps in order to counter that image, the framers of the Draft Treaty devoted a number of articles (44-51) explicitly to ‘The democratic life of the Union’. The question is of course whether this questionable image is justified to begin with, and if so, whether constitutional changes along the lines of the Draft Treaty would improve the situation and make the European Union more democratic. The two essays included in part III are rather pessimistic on both regards. In a paper aptly named The Aristocratic Surplus, Armin Cuyver gives an overview of the lack of democracy in the institutions of the European Union. In The Democratic Life in Europolis, Paul Nieuwenburg then follows up with a critique of the above-mentioned articles of the Draft Treaty, which he argues to be muddled and shallow.
Finally, in part IV, four authors discuss different aspects of the governance of the European Union. In his paper The Coming of Age of the European Legislator, Wim Voermans examines the various issues pertaining to the legislative power in Europe. He contends that, contrary to what is often believed, the European Parliament is now a full-blown legislative power, comparable to the national parliaments. In his contribution The President of the European Council as the Servant of the United States of Europe, John Sap focuses on the executive power. Carla Zoethout and Rick Lawson round off the book with essays on the position of the European Court of Justice and its case law. In her paper The Court and the Charter of Fundamental Rights, Zoethout focuses on the question how the European Court should interpret the Charter of Fundamental Rights. And in his paper In Search of Polaris: which Rights for the European Union, Lawson asks which human-rights standards the European Court should apply and how they should be applied.’
My own contribution is entitled: ‘Pluralism and European Unification’. You can download it here: https://openaccess.leidenuniv.nl/bitstream/handle/1887/12437/Pluralism+and+European+Unification.pdf?sequence=4.
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