10 Colum. J. Eur. L. 339 (2004)

Volker Röben, Dr. jur., LLM, College of Europe, Bruges, Belgium; LLM, UC Berkeley; Senior Research Fellow Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany.

Europe finds itself in the midst of the first self-conscious attempt to reflect on the public authority that has been created over fifty years of the European integration. The ‘Declaration on the future of the Union,’ adopted by the European Council meeting in Nice in 2000, has set in motion a process, to be completed by the end of 2004, of defining the political status of the Union. The ‘Draft Constitutional Treaty’ elaborated by a Convention of mixed composition is now under consideration by an Intergovernmental Conference. This current constitutional debate does not start from scratch. The article proposes that a specific, if not traditional, constitutionalism has evolved over the half-century course of European integration, in particular since 1992, when the Treaty on European Union was concluded at Maastricht. In this sense, the Union’s constitutionalism is stable even if its positive “constitutional” manifestations are not. The specific constitutionalism of the EU, the paper argues, is a three-level system of government that works through an inverse hierarchy. The constitutional nation State is placed both at the lowest and at the highest level of this system, with the Union/Communities taking the middle level. In the first process, the Union forms a hierarchical center with the Member States acting at the “lowest level” to the extent the Community enacts policies in areas such as the internal market and the Member States carry them out. But the periphery also inverts this hierarchy with the Member States acting at the “highest level” to the extent that they inspire and determine the action of the center. At this “highest” level of the hierarchy, the Member States act through the heads of States and governments assembled in the European Council, the national constitutional courts and national parliaments in their treaty-making capacity, while at the “lowest” level, they act through their executive organs and their courts. This interaction between center and periphery is the precondition for the working of the institutions of democracy, rule of law, and individual rights within the Union. The article analyzes these institutions of constitutionalism as they operate in an inverse hierarchy, taking into account, when appropriate, the new Draft Constitutional Treaty.