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Democracy, Transparency and the Apparent Demise of the Treaty Establishing a Constitution for Europe
Published online by Cambridge University Press: 27 October 2017
Extract
The failure of any constitution-making process is deeply disappointing for some and a source of satisfaction for others. The satisfaction of the latter may be short, or at least not long-lived, however, if it subsequently turns out that the changes were necessary, or even demonstrably useful. Initial failure in a constitutional project is relatively common, for reasons that range from the difficulty of the process to the novelty and perceived significance of the issues at stake. Experience suggests, however, that, at least where the rationale for the constitutional proposals was sufficiently soundly based, failure may not be the end of the story. It follows that it makes sense to take stock after such an event: to identify what is lost that was of value; to determine what, if anything, might be improved, if another constitutional moment presents itself; and to consider whether constitutionalisation should be attempted again, or whether other mechanisms can be used instead.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2006
References
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64 Denza, E, above n 18.
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78 Art I–20, III–404; the latter would have authorised the Parliament to adopt amendments to the budget submitted by the Commission and approved with a qualified majority by the Council. Disagreements between the Council and the Parliament would have been referred to a Conciliation Committee.
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82 Art I–22 The President would have been precluded from holding national office during his or her term: Art I–22(3).
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84 Art I–26(8).
85 Art I–27, III–340. These procedures gave some weight to the preferences of the Parliament and thus to the will of the voters. They departed from familiar democratic practice in a vari ety of ways, however: in particular, the Council had the initiative; and a censure motion required special majorities. An additional requirement for members of the Commission to, in effect, represent the Member States in accordance with an agreed system of rotation is broad ly consistent with the practice of some federations: Saunders, C ‘Concluding Observations’ in LeRoy, K and Saunders, C (eds), above n 34 Google Scholar.
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91 The limited sanctions available to the Parliament for use against the Commission or individual commissioners are another, despite the improvements that the Treaty would have made in this regard.
92 Art I–50(3), Constitutional Treaty.
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98 Art I–11(3) and Protocol II Art 4 of the Constitutional Treaty requires, eg, draft European laws to be forwarded by the Commission to national Parliaments at the same time as to the ‘Union legislator’.
99 Art I–42(2).
100 See, eg, concern in Germany about the authority of the German government to propose German candidates for European judicial positions: ‘[t]his leads to the anomaly that, under the federal constitution, the Bundestag and the Bundesrat have the right to nominate the Judges of the German constitutional court but not the Judges at European courts’: Hofman, H, above n 15, at 52.
101 For example, the access to documentation in Art I–50(3).