The various and diverse academic responses to the Conference on the Future of Europe’s efforts at democratic renewal, including those by Ben Crum, Markus Patberg and Sandra Seubert, speak not only to the lack of a clear institutional locus or pathway associated with the Conference, but also to differing understandings of the basic conditions of existence – or political ontology – of the European Union. These differing understandings are reflected in different attitudes to the European Union’s constitutional standing and prospects. This article explores how the special place of constitutional retrofitting in the European Union – of reconstructing and reimagining an originally pre-constitutional system in constitutional terms – helps to illuminate the different understanding of political ontology in play, and helps clarify what is at stake in the continuing debate over fundamental reform.

At the time this issue of EuConst goes to the press, May 2007, the German presidency is nearing the climax of its efforts to solve the conundrum of the future EU treaty or constitution. There is no way of even guessing what the outcome will be, as every day brings a new set of circumstances and proposals.

The Conseil constitutionnel has spoken again. In a decision of 27 July 2006, no. 2006-540 DC, the French constitutional court has further and significantly elaborated on earlier rulings on the status of Community directives in the French legal order. In the summer of 2004, it had ruled, in cases in which it was asked to declare unconstitutional an act of parliament implementing Community directives, that ‘the transposing of a Community directive results from a constitutional requirement with which non-compliance is only possible by reason of an express contrary provision of the Constitution’ (decisions of, inter alia, 10 June 2004, no. 2004-496 DC and 29 July 2004, no. 2004-498 DC). Very recently, the Conseil d'Etat, France's highest administrative court, took a similar stance in a case in which the constitutionality of a government decree implementing a directive was at stake (Decision of 8 February 2007, Société Arcelor Atlantique et Lorraine et autres).

Without doubt, the European Union has come to a crossroads. Following the failure of the proposed Constitution in the referendums in France and The Netherlands, it is now vital to take stock of the situation in order to develop an overall concept for how European integration can and should progress from this point. Germany's EU Council Presidency provides an opportunity to hold this discussion. However, the fair-weather talk about Europe, currently being heard from all political sides, is no help at all. People are ill-at-ease and increasingly reserved and sceptical about the European Union, because they can no longer make sense of the integration process, because they can't shake off the feeling of an ever stronger, increasingly inappropriate centralisation of competencies, and because they cannot see who is responsible for which policies. These concerns must be taken very seriously, particularly because they are not simply imaginary.

Habermas's normative vision – Strengths and deficiencies – European Union democracy as solution to global problems – Necessity of developing a European civil society – Normative ideal, functional mechanisms, empirical reexamination – Habermas's criticism of Euro-skeptics – Substance-through-procedure mode of social integration – Adequacy of procedural substance questioned – Empirical limits to Habermasian European Union democracy – ‘Multi-segmented governance’ in the European Union – Supranational redistribution? – Legal integration has not facilitated social integration – Scharpf, Weiler, Joerges, Schmitter – Habermas's Sozialstaat principles jeopardized on Union level – Structural obstacle to coordinated European social welfare policy – European politics will resemble Sektoralstaat – Participation, egalitarianism and accountability

Notion of constitutional concept varies over time and space. Constitution for Europe as a further step in guaranteeing rights and separating powers. Amongst others French, Italian, German and Swedish national concepts in the Treaties of the European Communities and of the European Union. Several causes for difficult tracing of national concepts in the Constitution for Europe. Convention method: instead of by diplomats and EU experts, drafting by members of Parliament and (former) members of Government. More room for national concepts. The Intergovernmental Conference: the Empire strikes back, but with mixed impact. Parallels with other constitution making procedures. Concept of constitution: structure and size no argument for denying constitutional character; Constitution octroyée v. contrat social; Franco-American revolution v. British tradition.

When thinking about the integration of the European sovereign states in the European Union, one does not need to be a euro-sceptic to perceive a big fish devouring little fish. Of course, the individuality of the different countries is assured in the European Union. Article I-5(1) of the European Constitution establishes that the Union shall respect their national identities inherent in their fundamental structures, political and constitutional, and their essential state functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. Europe is to be ‘United in diversity’. Yet, however considerate the Union may be of the various European countries, unity can exist only by the grace of all member states' loyally fulfilling their European obligations.

Area of freedom, security and justice. One of the most significant developments in European Integration. Assessment of the contribution of the Constitutional Treaty to further development. Formal abolition of pillar structure partially undermined by special provisions. Relevance of Charter of Fundamental Rights. Union powers strengthened, but likelihood of restrictive interpretation. Revised policy objectives: few new openings, but possibly important implications. Solidarity as a new integration principle. Is majority voting justified in particularly sensitive areas such as police and judicial co-operation in criminal matters? Monstrosity of the emergency-brake procedure. Strengthening of European Parliament and Court of Justice, but not overall. Perspective of enhanced co-operation.

In importance for the Union's constitutional evolution, the October 2004 events at least equal the European Constitutional Convention, including the IGC. This is the idea behind the following tens of pages in this issue of EuConst devoted to their analysis. Eight authors have been involved in putting together this story, seven of whom are young researchers from different countries in the Union. Their participation allowed many national aspects of the drama to be brought out in a way which otherwise would have been impossible.

Meeting of constitutional form and matter. Matter in the sense of Machiavelli's ‘political life’, clashes between the establisment and the people. EU investiture struggle and its outcomes. Structural elements of the EU Constitution: authority, representation, political federalism.

The only real surprise of the recent decision of the French Conseil constitutionnel [constitutional Council] concerning the compatibility between the European and the French Constitutions was the timing of it. According to Article 54 of the French Constitution, a treaty may be submitted for constitutional review at any time before ratification. In this instance, Jacques Chirac acted with unusual promptness, submitting his request on the very day the Treaty was signed, 29 October 2004. The Conseil itself reacted with equal speed, issuing its decision exactly three weeks later on 19 November 2004. Behind both courses of action lies the shadow of political concern related to the Socialist Party referendum on the European Constitution.

The main instrument of constitutional change in the European Union, during the last twenty years, was the revision treaty, that is, an international agreement between the member states of the European Union making amendments to the so-called ‘founding treaties’. The recent adoption of a European Constitution was seen by all the leading actors, and without any controversy, as involving again a revision of the current Treaties in accordance with the procedure of Article 48 EU Treaty, rather than the creation of a wholly new legal edifice. This Constitution thus fits, despite its many novelties, in the long chain of European revision treaties. All the revision treaties were important steps in the development of the European integration process. They were also, from a legal perspective, cases of amendment of multilateral treaties subject to the legal regime set out in Articles 39 to 41 of the Vienna Convention on the Law of Treaties.

European treaty revision was a success story in what could be called its golden age (1985–2000), when amendments were successfully made and implemented in accordance with the traditional method of intergovernmental conferences followed by national ratifications. However, increasing criticism of this traditional method led, not to the rejection of the international law framework altogether, but to claims for reform of the particular expression of that international law regime in the EU context. Those misgivings related to the exceedingly diplomatic (and therefore opaque) character of treaty negotiations, and to the excessive rigidity caused by the ‘double lock’ of overall consensus by all governments at the intergovernmental conference, followed by universal ratification in all the member states. The article examines the recent debates on these points, as well as the remedies which the new European Constitution adopted or failed to adopt.

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!

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.

Both the EU- and the EC-Treaties refer in prominent places to the establishment of economic and monetary union (Articles 2 EU and EC). This union is mentioned as one of the principal means of achieving the Union's and the Community's economic and social objectives. Such a prominent place is not allotted it in the Constitution. In its effort to separate the basic provisions from the other provisions in the treaties, the Convention decided to retain only the European Union's objectives in the actual constitutional part. The concrete activities pertaining to the economic and monetary union, as well as its ‘guiding principles’ of stable prices, sound public finances and monetary conditions and a sustainable balance of payments were relegated to Part III that deals with the Union's policies.

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.

Since the Maastricht Treaty of 1992, the principle of subsidiarity is to govern the exercise of powers between the European Community and the Member States in areas that do not fall within the exclusive competence of the Community. According to the treaty provision, the principle means that the Community can only take action if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. A similar provision is now part of the draft ‘European Constitution’ 2003; it merely adds that Member State action can be taken at the national, the regional and the local level. Even without this useless supplement, the definition of subsidiarity looks fairly complicated.

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.

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.

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.