Between 11 March and 29 October 2004, between Madrid and Rome, the European Constitution has turned from an uncertain possibility into a certain (albeit not full) reality. The day of the Madrid train bombs killing 190 and wounding 1500 is as inseparable from the history of the Constitution as the date of its signature, 29 October. Those events of 11 March (and the ensuing government blunders) moved the Spanish people to end the reign of Aznar's Popular Party. This in turn unblocked the Constitution talks that had got gripped, among other things, due to Spanish intransigence in December.

In several ways the particular sequence or succession of events from 11 March to 29 October can also be seen as symbolic for this particular European Constitution. Let us select three angles: an historic, a formal and a substantive one.

‘The Cypriot Minister for Foreign Affairs, George Iacavou, asked in Luxembourg to maintain in the European Constitution project the quotation of the Greek historian Thucydides which had been crossed out in the last document of the Irish Presidency. According to AFP, Hellenists affirmed that the sentence (“our Constitution... is called a democracy because the power is in the hands not of a minority, but of the greatest number”) was badly translated and also that Thucydides was a disputed personality’.

Let us note that the translation was already modified by the Convention. The first version evoked ‘the whole people’, the ‘ultimate’, ‘the greatest number’. Until the last minute, the Preamble had been discussed. In the Convention, Robert Badinter, former president of the French constitutional Council, had already co-signed, on 3 June 2003, with the author of these lines and Pervenche Berès, a proposal for an amendment to the Preamble to remove the quotation of Thucydides. It did not seem suitable to us to place the Union under the auspices of the founder of realistic geopolitics, a kind of Kissinger of ancient Greece. Others say that they oppose this quotation because it refers to the power of the people, not that of States. The quotation finally disappeared during the Brussels summit on 17 and 18 June 2004. As we see, no word of the Preamble is left aside.

While the Union's powers and responsibilities are ever on the increase and co-operation deepens as the Union begins to take positions more easily in the areas of freedom, security, justice and defense, it is seeking to keep the Member States and the Union together via the duties of loyalty. These are spelled out in general terms in Article I-5, and in more specific terms in specific contexts, such as those of the Common Foreign and Security Policy [Article I-15(2)]. Article I-5 is entitled ‘Relations between the Union and the Member States’, but it is also central to the relations between the Member States themselves in terms, for example, of the exercise of their voting rights in the Council of Ministers. The Article consolidates provisions that are currently scattered over various Treaties but not without adding some novelties.

While the Nice Treaty cast a shadow over the Convention's work on the institutions and led to the project's first failure in the Brussels Summit, the war in Iraq cast shadows over the common foreign and security agenda. On the one hand, it proved the extent to which Europe is divided over substantive positions and over the means to act, particularly the resort to war. On the other hand, there is an increased popular sense that Europe should play a role (reflected in Eurobarometer polls, including one especially commissioned by Giscard). Article I-40 of the Draft Constitution on defence reflects that ambition. It remains to be seen whether this facilitates Europe to unite when it comes to giving foreign policy teeth in the form of a real and effective common ‘defence’ policy.

As with most other provisions of the Constitution, Article I-40 in the main builds on and consolidates the texts as we already have them in the existing Treaties, but at the same time, it innovates.

Now that the EU Constitution has been adopted, one might be inclined to think that the debate on the position of human rights in the legal order of the European Union has come to an end. For more than 25 years academics and politicians have discussed the desirability of EC/EU accession to the European Convention of Human Rights and have argued for or against a separate bill of fundamental rights. That is all over now: Article I-7 of the Constitution provides for Union accession to the European Convention, whereas part II incorporates the Charter of Fundamental Rights.

It would seem, therefore, that a solid framework for the protection of human rights in the EU legal order has been put in place. The rest will be a matter of implementation: taking fundamental rights into account when drafting and executing European legislation; invoking these rights before the Court of Justice; lodging complaints with the European Court of Human Rights when the EU institutions, despite everything, failed to secure these rights. All very important, albeit that some may find the daily application of human rights not as sexy as the large constitutional questions of the past.

So is this the ‘end of history’ for human rights? Quite the opposite. The best is yet to come!

There is considerable flexibility in the use of the term ‘social rights’. The list of such rights varies in international documents, and it is difficult to find a common denominator or ground for classification for what are called social rights. A further standard problem is that not all social rights have the legal nature of more traditional civil and political rights. Social rights entail claims that are neither necessarily individual nor necessarily enforceable in court, at least not in the sense that they will result in remedies available to identifiable rights holders. Hereinafter, social rights refer to rights that are related to social status, including status rights that are applicable to the economic sphere (rights related to work are often discussed as economic rights, i.e., rights in the economy). Such status rights might apply to all in a given circumstance (e.g., a social subsistence minimum that applies to all who are in need) or they might be specific. In the latter case, the social status is related to a condition that one cannot change voluntarily, at least not in the short run (e.g., motherhood, or being a child, an orphan, or handicapped).

In a text which claims constitutional rank the principle of citizenship, in all meanings of the term, is fundamental. If a treaty has as its first reference the State, a constitution naturally has as a reference also the citizen. Indeed in the European Constitution provisions abound referring to the citizen. In Part I they are to be found in Titles II and VI; in Part II there is the whole Title V and in Part III there is Title II. As citizenship is everywhere in the Draft, this would deserve it the rank of Constitution that it claims.

This first impression, however, is not supported by reading the different actual provisions in the Draft Constitution concerning citizenship. They fall short on three grounds.

The European Council's personal, elected and mandated presidency is without a doubt one of the major innovations in the Constitution. It is also its most fought over and precarious novelty. Until the last stages of the Convention, the great majority of small Member States' representatives maintained staunch opposition against the idea. In the end, however, they all reluctantly dropped resistance in the face of the praesidium's intransigence, supported by the major Member States. With its new chairman, the European Council can be considered the great winner among the Union institutions. Apart from becoming a full European institution (Article I-18), it is getting structured leadership. Article I-21 of the Draft European Constitution states that the European President is to be elected by the European Council, by a qualified majority for a term of two and a half years, and cannot serve more than two terms. The President may not hold a national mandate. In order to understand this new function, one needs to look into its origin, powers, strengths and weaknesses.

The inter-institutional balance of power within the EU is central to the new constitutional order. It is not therefore surprising that this topic, which is dealt with in Title IV of Part 1 of the Constitution, was contentious. This was evident in the process employed at the Convention. The Convention's general three-stage methodology of listening, examination, and proposal was not applied to the deliberations about institutions. There was no Working Group. The Convention discussions about institutions only began formally in January 2003. The Praesidium submitted its proposals to the Convention in April 2003. Full discussion of the draft articles concerned with institutions only occurred in the plenary session on 15-16 May 2003. There was no second reading in plenary about these articles. The Praesidium opted instead for consultations with the four constituent groups, governments, MEPs, National MPs, and the Commission, which took place on 4 June 2003. Formal text of the revised articles on the institutions only became available on 10 June, a mere three days before the concluding session on 13 June.

This short piece cannot deal in detail with the many issues concerning the institutional provisions of the Constitutional Treaty. It is designed to be a brief guide to the relevant issues

A powerful development by the European Constitution exists in the rationalisation of the instruments through which the Union may exercise the competences conferred upon it. This has constituted a particularly sensitive issue for the Convention. Under the EC and EU Treaties, the Union uses no less than 15 different instruments, some having the same appellation but entailing different legal effects, others being rarely used. This diversity has contributed to the development of an obscure patchwork of norms with ill-defined scope, legal effects and institutional origin. That situation consequently limits democratic control over governance at the European level.

The European Council actually, as a rule, takes decisions by consensus, as its major function is to bring a primary political impetus into the integration process through ‘conclusions’, ‘principles’, ‘guidelines’, and ‘joint strategies’ or ‘recommendations’ not having the force of a legal act. This is a customary rule; it is not stipulated in Article 4 EU. Consensus may be regarded as a ‘soft’ unanimity, reached without voting, in a silent way (no opposing statements), and allowing – within the framework of the common position – some divergences by individual Member States.

It is a popular misunderstanding that European citizens' lack of interest in the European Union has to do with the powers of the European Parliament. These powers have been constantly strengthened over the years, but that did not enhance voters' interest in European affairs. Even with the granting of European citizenship and the introduction of the euro, voters did not get interested, as the low turnout at the elections of members of the European Parliament on June 2004 (less than 45 %) attests. These elections even saw the rise of anti-European parties in several Member States, like the Independence Party (UKIP) in the United Kingdom. These elections, however, dealt more with national issues and the confidence in national governments than with European issues.

As it is obviously impossible for the modern ‘demos’ to assemble in order to take political decisions, democratic representation is an inevitable tool in large democracies. Representatives have to stand for and to act for the people as a whole. Accordingly, the principle of representative or parliamentary democracy is a fundamental constitutional principle shared by all the Member States of the Union. Democracy doubtlessly works on the national level; the Member States' decisional powers, however, are fading with the constant transfer of competences towards the European level. This leads to a system of European ‘multi-level governance’ with wide consequences for the linkage between the represented peoples of the Member States and their representatives on both national and European levels.

The European citizens' initiative (ECI) is a new device of participatory democracy, which has its own characteristics, unknown to date at any level of national or trans-national government. It is designed to allow the citizens to take an active role within the law-making process of the EU. The specific features of this process affect the legal nature as well as the functioning of the new participatory device. Both will depend strongly on the European law, which shall determine the procedures and conditions required for the ECI.

For the first time in history, the aspiration to ‘an ever closer union’ between European peoples (not states) was laid down in the Treaty of Rome of 1957. The same idea has now found expression in the preamble to the Draft Treaty Establishing a Constitution for Europe: ‘Convinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their ancient divisions and, united ever more closely, to forge a common destiny’. However, as is usual in politics, the precise meaning of this formula is left unclear. Can pride of national identity and history go together with the forging of a common destiny? Without trying to answer this question, this short article looks at whether (a) European history, (b) the wording of the proposed treaty itself and (c) the international context can give some clues as to where forging a common destiny between the peoples of Europe might lead in a constitutional sense. Will the Union develop into a more or less centralised entity that resembles a state or will it remain the rather loose and open conglomeration of states it presently is?

One of the central issues arising during each of the Intergovernmental Conferences which has taken place since that of Maastricht, which inscribed the notion of limited conferred competences for the first time in the EC Treaty, has been the attempt to establish clear limits to the powers of the European Community and Union. The ‘delimitation of competences’ was placed on the initial post-Nice agenda of 2000 alongside only three other issues, and the ‘division and definition of competence’ was listed as the first of the pressing ‘challenges and reforms’ of the Laeken Declaration of 2001. No surprise, then, that this question was once again amongst the key questions for debate during the Convention on the Future of Europe, occupying the attention of at least two working groups (those on complementary competences and subsidiarity), and surfacing in many other political and academic debates on the proposed Constitution.

In federal systems public authority is established by the people and exercised for the people at two levels. The treaties establishing the European Union may be conceptualised as the constitution of a supranational public authority, part of a federal system. And what the European Convention has submitted to the European Council to agree upon is an attempt to give this constitution a more coherent, more complete and more appealing form. The new ‘Constitution for Europe’ will be concluded, formally, by an international treaty. But governments and national parliaments will do this on behalf of the citizens of the Union, and insofar as national Constitutions provide for a referendum, the citizens will directly be involved. This Constitution will, therefore, like national constitutions, draw its legitimacy from the people, citizens of the polity, through their constitutional representatives. Legitimacy obtained is similar to that sought for a regular treaty but specific due to the contents and the explicit constitutional claim of the instrument.

One of the legal cornerstones of ‘formal federalism’ is the capacity of any rule of EC Law to override any rule, including those of constitutional rank, of the Member States. The primacy doctrine has been introduced by the Court of Justice in Costa v. ENEL (1964). It can be read in two ways. In the first place it may be held to imply the supremacy of Community law, i.e., the idea that Community law has a higher rank than even the national constitutions and is hierarchically superior to it, as the Court itself sometimes has expressed it (Simmenthal, 1978). This may be called the existential reading. Alternatively, there is a more modest interpretation implying mere practical priority or precedence, as in traffic rules. For this practical interpretation there are equally arguments to be found in the Court's case-law: the aims of the EC-treaty cannot be accomplished if domestic law were to prevail over Community law.

The challenges for the system of judicial protection of the EU spring from two main developments: first, the enlargement of the EU, which inevitably affects all institutions of the Union, most notably their organisational structure and modus operandi, second, the deepening and widening of the areas falling within the scope of competences of the EU. Article I-28 Draft Constitution states that the Court of Justice of the EU shall include the ECJ, the High Court and specialised courts. These courts, together with the national courts of all levels, constitute the intricate nexus offering judicial protection in the EU. The issues that dominated debates on the reform of the system of judicial protection varied from the amendment of Article 230.4 EC on the locus standi of applicants, to the impact of the incorporation of the Charter of Human Rights and to the competences of the ECJ in the areas of the second and third pillar. They all relate to the deepening and widening of the Union through this Draft Constitution.