The Development of European Constitutionalism and the Role of the EU Charter of Fundamental Rights

9 Colum. J. Eur. L. 355 (2003)

Gráinne de Búrca.
Jo Beatrix Aschenbrenner.

The aim of this contribution is to situate the EU Charter of Fundamental Rights in the context of the much broader, less easily captured, and often slippery notion of European constitutionalism. The present time is, by any standards, an exciting period in European constitutional development. A particular confluence of events-beginning with contributions and speeches from virtually all of Europe’s political leaders in 2000 and 2001, continuing with the Convention and the Forum on the future of Europe in 2002-2003, and leading up to the 2004 Intergovernmental Conference (IGC)-has triggered a high-level and sustained degree of political debate about the constitutional future of the EU.

Further, the ‘second phase’ of the process regarding the legal nature and effects of the Charter is well underway. The first phase, in accordance with the decision of the Cologne European Council meeting in 2000, was to solemnly ‘proclaim’ the Charter, and this was done in Nice in December 2000 by the Parliament, the Commission and the Council. The second step was then to “consider whether, and if so, how, an integration of the Charter into the treaties could take place,” and the ‘Convention on the Future of Europe’ which was subsequently established with a mandate to prepare for the 2004 IGC was given a central role within this constitutional process. It appears the third phase is to be the ultimate decision of the IGC itself as to the role and effect of the Charter.

However, certain recent EU policy initiatives place the debate on constitutionalism and the Charter in a starker and more concrete context, and raise a number of troubling questions. To take a vivid example, the speedy adoption of a European arrest warrant has been one of the internal EU responses to the attacks of September 11, 2001. The preamble to the framework decision on the arrest warrant proclaims the Union’s respect for fundamental rights, in particular those mentioned in Chapter VI of the Charter of Fundamental Rights relating to “justice.”, Two preliminary comments should be made in this context. The first is that mere reference to fundamental rights and to the Charter does not alter the fact that the European arrest warrant in practice undermines such rights, as indeed has been argued by a number of NGOs and by dissenting voices within the European Parliamentary debate. Second, a recent commentator has posed the pertinent question whether “any sort of debate about constitutions, constitutionalism and constitutionalization” including the work of the high-profile Convention “can assist in resolving the very real political problems faced by the EU at the present time,” problems which include the economic challenges of globalization, reform of the institutions, and the impending enlargement of the EU.

In order to relate the emergence of the Charter to the development of European constitutionalism, we begin by outlining the political context and background to the current constitutional debate. Next, various understandings of European constitutionalism are discussed, and finally, we appraise the place and role occupied by the Charter within this picture of European constitutional development.