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About this book

Enlargement and treaty reform have moved Europe's constitutional debate into the political spotlight. This important new text outlines the main themes of constitutional debate in the EU, analyzes formal and informal constitution-building since the early days of European integration, and introduces the actors and structures behind treaty change.

Table of Contents

Chapter 1. Introduction: The Constitutionalization of Europe

Abstract
For the European Union (EU) the early twenty-first century was dominated by the debate about a ‘European Constitution’ — first concerning its negotiation, later followed by its demise, and finally focusing on its ‘rebirth’ as the Lisbon Treaty (LT). In the face of the Union’s biggest ever enlargement to 27 member states a fundamental debate about, and a systematic overhaul of, Europe’s institutional architecture and normative foundation was deemed essential. Yet, while the prospect of a ‘big bang’ enlargement had been with the EU since the 1990s, previous reform attempts — the Amsterdam Treaty and the Nice reforms — fell short of expectations and became the subject of criticism both for their substantive content and for the process through which they came about. Thus, just as the ink on the Nice Treaty was drying, the so-called ‘Post-Nice Process’ was launched in order to engender a large-scale debate about Europe’s future. By now the outcome of this endeavour is all too familiar: Post-Nice set the scene for the Convention on the Future of Europe (CFE) and for the negotiation of the Treaty Establishing a Constitution for Europe (CT).
Thomas Christiansen, Christine Reh

Chapter 2. Of Rights and Duties: Does Europe have a Constitution?

Abstract
When the Schuman Declaration laid the basis for the European Coal and Steel Community (ECSC) on 9 May 1950, the six founding states chose to leave the ultimate goal of their novel creation undefined. The first of the European Communities (ECs) was to be constituted on the basis of an international treaty rather than a constitution, to follow a logic of functionalist integration rather than pursue political union, and to be driven by incrementalism rather than a clear-cut political (and constitutional) finalité. In spite of this, it was by no means obvious that the early Community would become a similar ‘objet politique non identifié’, as Commission President Jacques Delors later called it (quoted in Quermonne, 1992, p. 802).
Thomas Christiansen, Christine Reh

Chapter 3. Constitutionalizing the European Union: Politics, Law and Discourse

Abstract
Recalling the driving questions raised at the beginning of Chapter 2 — (1) Does Europe have a constitution? (2) How has Europe been constitutionalized? (3) Should Europe have a constitution? — our focus has so far been on the empirical evaluation of the EU’s primary law and thus on constitutional substance. The following sections turn to the political and legal processes through which Europe’s sui generis order has been brought about, and to the accompanying debate about the normative desirability of a ‘European Constitution’.
Thomas Christiansen, Christine Reh

Chapter 4. The Role of Actors in EU Treaty Reform

Abstract
The previous two chapters have offered an overview of continuous constitutionalization in Europe, looking at the changing quality of EU primary law and at the different formal and informal, political, legal and discursive mechanisms behind this transformation. The subsequent chapters focus on the most prominent mechanism: formal-implicit constitutionalization through treaty reform, played out mostly though not exclusively in Intergovernmental Conferences. Together with Chapter 5, the following sections introduce our framework to study similar reforms: the agency of national, supranational and non-state players, as well as the structural opportunities and constraints that these actors face.
Thomas Christiansen, Christine Reh

Chapter 5. Patterns of Structure in EU Treaty Reform

Abstract
At the beginning of this book, we defined constitutional politics as the struggle between a wide range of actors over Europe’s legal and political order; parts of this struggle are played out in Intergovernmental Conferences as the formal rounds of EU reform. IGCs, in turn, were conceptualized as historically embedded and longitudinal processes, characterized by distinct structural properties. The previous chapter introduced the range of actors that contributed to constitutionalizing the EU during and in between such formal reform rounds; this chapter turns to the legally, institutionally and discursively prestructured environment within which they interact. In doing so, the chapter complements three important strands of research on EU reform: first, the preoccupation with agency and the choices of national leaders in particular; second, the focus on material and economic conditions where more structural explanations are sought; and, third, the strict separation between ‘normal’ and constitutional politics.
Thomas Christiansen, Christine Reh

Chapter 6. Agenda-Setting in Intergovernmental Conferences

Abstract
So far, we have looked at who acts in constitutional politics, and at how decision-making is prestructured. This chapter turns to the setting of a reform agenda, the range of problems tabled, and the origin of ideas for their solution. We will discuss three distinct but interrelated questions: (1) How are reform issues identified? (2) How and by whom are problems defined? (3) How and with what impact are alternatives generated? These questions are bundled under the headings of ‘agenda-setting’ and ‘framing’. Together, they constitute the first phase of constitutional policy-making in Europe.
Thomas Christiansen, Christine Reh

Chapter 7. Decision-Making in Intergovernmental Conferences

Abstract
Having looked at the ways in which the agenda for EU treaty reform is set and prestructured and at how key negotiation issues are framed, in this chapter we now focus on the conduct of Intergovernmental Conference per se. Originating in the 1955 Messina Conference at a time when European integration indeed seemed an expression of international diplomacy, the term ‘conference’ aptly captured the process leading to the Rome Treaties on Euratom and the EEC. Until today IGCs have, however, proliferated to such an extent that some scholars talk of a ‘semi-permanent’ revision process (de Witte, 2002, p. 39), and identify more and more traits of Community policy-making in constitutional negotiations. The purely diplomatic nature of treaty reform has accordingly become more and more contested (Christiansen et al., 2002).
Thomas Christiansen, Christine Reh

Chapter 8. The Follow-Up to Intergovernmental Conferences

Abstract
As noted in Chapter 1, there are certain similarities between the process of constitutionalizing the European Union and the ordinary process of EU policy-making. Earlier we identified distinctive phases of agenda-setting and decision-making, and discussed the way in which treaty reform proceeds through these stages in Chapters 6 and 7. Once a policy-decision is taken, this then requires further stages of policy-implementation, -application, -evaluation and, in some cases, adjudication by national or European courts. In the case of EU treaty reform, the process continues after decision-making with the ratification of the agreement on treaty change in each of the member states. This is a formal requirement — only if and when all member states have ratified the changes can a revised treaty come into force.
Thomas Christiansen, Christine Reh

Chapter 9. The ‘Rise’ and ‘Fall’ of Explicit Constitutionalization

Abstract
We began this study of the European Union’s constitutionalization by pointing out that the recent effort towards establishing a capital-C Constitution is best seen in the context of a long-lasting process that had previously progressed (only) implicitly and incrementally. Having explored the elements of this process in the preceding chapters and the way in which this process of constitutionalization has come about, it is now appropriate to return to our starting point. Several questions immediately present themselves: why did the decision-makers consider it necessary to turn to formal-explicit constitutionalization? How did they go about it, and what were the politics behind the agreement on a Constitutional Treaty? How did the EU manage to overcome the crisis that occurred when its ratification failed? And, most importantly, what has been the lasting contribution of this phase in European integration, given that the EU has reverted back to ‘normal’ treaty reform since? This chapter addresses these questions, before the discussion finally moves on in Chapter 10 to assess the current state and the future direction of Europe’s constitutionalization.
Thomas Christiansen, Christine Reh

Chapter 10. Conclusion: Constitutionalization beyond Lisbon

Abstract
This volume has been built on one core argument: we can fully grasp constitutional change in Europe only if we analyse constitutionalization as a continuous, non-teleological process, rather than as a series of discrete, historical bargains struck by national leaders. Agency is important — and the Humboldt Speech, launching the brief phase of formal-explicit constitutionalization at the beginning of this century, or Giscard’s leadership in the Convention are cases in point. Yet, our analysis has also demonstrated how constitutional choice in Europe has been facilitated and constrained by the set of structural properties that developed in the course of constitutionalization and that enveloped each individual IGC. We have also argued that constitutional and ‘normal’ politics have become increasingly akin, and, more generally, that Europe has been constitutionalized in the absence of a symbolic moment, popular endorsement and an explicit constitutional register. Instead, Europe’s legal and political order has been built on formal but implicit constitutionalization through treaty reform, as well as on incremental and informal constitutionalization through jurisprudence and the Community policy process. Similar constitutionalization without a capital-C Constitution is likely to continue if and when the Lisbon Treaty is ratified.
Thomas Christiansen, Christine Reh
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