11 Colum. J. Eur. L. 481 (2005)

Mattias Kumm. Professor at New York University School of Law

L’identité de I’Europe sera constitutionnelle ou ne sera pas.
–Rousseau Dominique et al., Pour une Constitution Européenne, Le Monde, May 5, 1998.

A sufficiently robust European identity is widely believed to be necessary for the long-term stability and efficiency of the European polity. If the European Union (EU) is to successfully master its assigned tasks and, using a non-consensual procedure, decide on policies significantly affecting the allocation of risks and resources between European citizens, then European citizens must develop a strong commitment to a European identity. There is little doubt that such an identity is currently missing. The general question is what such an identity should be and under what conditions it is likely to develop. The question to be pursued here is how the Constitutional Treaty (CT), signed by Member States on October 29, 2004 and to be ratified within the next two years, contributes to the development of a European identity. There are two aspects to this question. First, what normative idea of the EU does the CT embrace and what normative core identity does it invite citizens to adopt? Second, what are the circumstances under which such an identity is likely to develop and does the CT help to establish these conditions?

The first question focuses on the normative ideal embraced by the constitutional document itself. What is the story that the CT in its textual self-presentation tells about the way that the EU fits into the legal and political life of Europe? This question can be divided into several more specific questions: What does the CT say the EU stands for? What is its basic purpose? What is its authority in relationship to Member States? What makes it legitimate? In answering these questions the core part of the article provides a reconstructive account of the conception of supranational identity that the CT embraces and its text articulates. It does not seek to contribute to the immense literature discussing the normative questions of what an adequate European identity should be, whether national courts ought to accept the European Court of Justice’s (ECJ) claim that EU law is the supreme law of the land, or whether the EU is in fact democratically legitimate. Its purpose is primarily reconstructive and its method analytical. The article seeks to highlight the core features of the EU, as a supranational polity, as it is presented in the CT. The last part is more empirically focused and less developed. It tentatively explores whether the CT and the political and legal practices it structures are likely to contribute to the development of such a European identity.

The identity embraced by the CT is a version of constitutional patriotism. Part I of the article briefly presents the idea of constitutional patriotism. The purpose is to provide some conceptual clarification and clear the ground for the more specific discussion of constitutional patriotism as a European identity. The specific contours of constitutional patriotism as a European identity will then be explored in Part 11 by an analysis of the Preamble of the CT. To further describe the idea of the specifically supranational identity of the CT, the article will then discuss some core provisions pertinent to the authority (Part 1II) and legitimacy (Part IV) of EU. The CT’s conception of authority and legitimacy, as reflected in these provisions, serves to highlight the relationship between Member States and the EU and gives more concrete contours to the idea of the EU as a supranational community. In the final part, Part V, the article ventures to tentatively explore whether the CT and the political and legal practices it structures are likely to contribute to the development of a European identity. It will argue that, whatever other factors may also influence the development of a European identity, the establishment of meaningful electoral politics on the European level is likely to be a necessary condition for such an identity to develop in the foreseeable future. The CT, however, does not allocate decision-making authority between European institutions in a way that strengthens European electoral politics. Instead, there is a danger that the CT will undermine, rather than foster, the development of a meaningful European identity. Instead of embracing constitutional patriotism, European citizens are likely to continue to oscillate between disinterest in European political life and national recalcitrance. But there is a ray of hope. The article concludes that a purposive interpretation of the CT in conjunction with strong parliamentary assertiveness vis-A-vis the Council could create conditions more favorable to the development of both a meaningful European electoral process and a European identity grounded in constitutional patriotism.