11 Colum. J. Eur. L. 77 (2004)

Markus G. Puder. First Legal State Examination, Ludwig-Maximilians University, Munich, Germany; Second Legal State Examination, Munich Upper Court of Appeals; LL.M., Georgetown University Law Center; Ph.D. in Law, Ludwig-Maximilians University.

In the summer of 2003 the Convention on the Future of Europe (European Convention), chaired by former French President Valery Giscard d’Estaing, proposed to push the European Union (“EU” or “Union”) towards a re-foundation through the Draft Treaty Establishing a Constitution for Europe (“Convention Draft”). A few weeks later, this document was relayed to an Inter-Governmental Conference (“IGC”), made up of the representatives of the nation-states, for approval. The IGC opened in the early fall of 2003 and convened several times at the levels of the Foreign Ministers and the Heads of State or Government. Initially deadlocked over institutional reform questions, the combination of improved domestic approval conditions and renewed willingness to compromise among all Member States enabled the IGC to reach an agreement over the final document eight months later. The Treaty Establishing a Constitution for Europe (“Union Constitution”) was signed on October 29, 2004. The Union Constitution will take effect after ratification by all EU Member States pursuant to their own constitutional arrangements.

Since the launch of what we today call the EU, organizing a pooled transnational government, anchored in multilateral international law treaties of deepening and widening, and fueled by domestic constitutional law arrangements, has proven a constant theme in the evolution of the integration framework. Since its inception European integration has been the subject of disputes, haggling, and compromise among the nation-state members. Patchwork revisions have often instituted short-term fixes, rendez-vous clauses, and deferrals to punt the difficult questions for resolution at the time of the next overhaul. This practice has led to endearing tutulations constructed around the name where a particular revision treaty was signed and the reform theme requiring resolution. Examples include “Maastricht II” reflections, “Amsterdam left-overs,” and “post-Nice process.” In this light, the relatively recent phrase dujour “debate about the future of Europe” seems tame. Those inclined to word-play on the widely-used rhetoric of constitutionalizing governance in Europe might surmise that comprehensive improvements to the institutional framework of the integration system are tied to the right balance between governmentium and constitutium. Both are fictitious and unknown to the table of elements and the art of political science. The birth, discovery, and dissemination of governmentium have taken place in the virtual reality of the internet. Constitutium in this context represents the coupletterm to express a central aspect of all constitutionally-rooted political government – the design of governing institutions under a polity’s empowering order. Applied to the EU, the discussion will focus on the four managing institutions of the Union’s government envisaged by the Union Constitution: the European Parliament, the European Council, the Council of Ministers, and the European Commission. Part 2 describes the overall context and status of the integration project. Part 3 distills a methodology for analyzing proposed changes. Part 4 analyzes the substance of the envisaged reforms. Finally, Part 5 summarizes key findings and offers overall perspectives.