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.

On 14 October 2004 the German Federal Constitutional Court, the Bundesverfassungsgericht, delivered a decision of principal character regarding the status of the European Convention on Human Rights (Convention) and the rulings of the European Court of Human Rights in the German legal order. It is the first time the Bundesverfassungsgericht has so fundamentally dealt with this topic, moreover in the composition of the complete (second) Senate (not just a chamber of the court). That the constitutional court itself attaches high importance to its decision and expected international interest is witnessed by the fact that the court has made an English translation of the decision available. This is something that does not happen very often, at least until now.

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 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.

Just as some were getting ready to uncork bottles of champagne in celebration of the first anniversary of the enlargement of the European Union with ten member states, the Polish Constitutional Tribunal delivered an important judgment assessing the conformity of provisions of the Penal Procedure Code, transposing the European Arrest Warrant with the Polish Constitution. In the decision, which potentially has effects beyond the Polish legal system, the Tribunal annulled the transposing legislation (with a delay of 18 months) because it infringed Article 55(1), which states that ‘The extradition of a Polish citizen shall be prohibited’.

Shortly before the European Council reached political agreement on the European Constitutional Treaty (18 June 2004), the Conseil constitutionnel [the French constitutional court], rendered a decision on the relationship between (secondary) community law and the French Constitution that will still be pivotal once the Constitutional Treaty has entered into force. Taken on 10 June 2004, the decision was only made public five days later. The Conseil feared that it would be presented as ‘a French abdication in the face of the European institutions’ and might influence the elections for the European Parliament of 13 June 2004.

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?

In the fourteen years since Estonia regained its independence in 1991, the Europeanisation of its legal, political and economic system has been rapid. Estonia became a member of the Council of Europe in May 1993 and has, thereafter, ratified most of its important international human rights conventions. Before becoming a member of the European Union in May 2004, a large-scale harmonisation of its laws with the EU standards has taken place. Two recent decisions by the Estonian Supreme Court, the subject of the present annotation, on the application of the European Convention of Human Rights (ECHR) and the execution of the decisions of the European Court of Human Rights illustrate the way in which European standards have become a part of the Estonian legal system.

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.

1. PETER NORMAN, The Accidental Constitution, the story of the European Convention. Brussels: EuroComment, 2003, 406 p. ISBN 9077110054

2. KLEMENS H. FISCHER, Konvent zur Zukunft Europas. Texte und Kommentar. Baden-Baden: Nomos Verlagsgesellschaft, 2003, 542 p. ISBN 383290171X

3. ETIENNE DE PONCINS, Vers une Constitution européenne. Texte commenté du projet de traité constitutionnel établi par la Convention européenne. Paris: Editions 10/18, 2003, 528 p. ISBN 2264038179

4. VALÉRY GISCARD D'ESTAING, La Constitution pour l'Europe. Paris: Editions Albin Michel, 2003, 396 p. ISBN 2226142010

5. JEAN-LUC DEHAENE, De Europese uitdaging. Van uitbreiding tot integratie. Leuven: Van Halewyck, 2004, 237 p. ISBN 9056175645

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.

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.

Purse power has been a hot item throughout the Union's history and was again much fought over during the Convention and the Intergovernmental Conference. The Constitution has indeed produced a number of significant changes. What makes the subject so hot? It is not just the money. The Union's budget is no more than that of a single smaller Member State. Most of the expenses are, moreover, fixed. That the budget should be so hot is probably because fighting over money is a good test of strengths generally (with a neat and immediate outcome). This explains the role the purse has always played in constitutional history. True to the grand tradition then, as soon as the European Parliament was given powers in the matter (1975) and got directly elected (1979), it had fights over the EU budget. This was mainly a wedge to break a share for itself in the legislative process. In the years that followed, it has in fact gained more legislative than financial powers. And the Union has been kept short, not on legislative powers but on money.

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.

The provision relating to the adoption, ratification and entry into force of the Treaty establishing the Constitution for Europe is probably one of the most difficult ones, both in legal and political terms. It is supposed to define the legal nature and quality of the entire EU process in its present and future phase. There is an inherent ambiguity about the legal nature of the treaty, which is already apparent in the title, and there are profound political implications as well. Is the Treaty establishing a Constitution for Europe a treaty or a constitution? Can it be both or neither? These are hard questions indeed.

Many proponents of the Constitutional Treaty admit that this document is far from perfect, indeed quite disappointing in many respects, but argue that the Treaty should be seen as a step in the long process of European integration rather than an end-point. It will be possible to learn from the failings of the new Treaty and correct them later on, just like this Treaty itself has corrected some of the mistakes, and fill in some of the blanks left by earlier Treaty revisions.

Since the ratification of the Treaty of Maastricht, the ‘democratic deficit’ is used as a term to describe the democratic deficiencies of the European integration process. What is the influence of the citizens on the process of governmental and constitutional decision-making? Due to the distance between the powers of the Community and the nation state, the power of the executive over parliamentary bodies and the fact that a lot of decision-making takes place behind closed doors, greater democracy and transparency is needed.