Process and Constitutional Discourse in the European Union
| Published date | 01 March 2000 |
| Author | Jo Shaw |
| Date | 01 March 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00145 |
The paper presents a three-step approach to key constitutional issues in
the European Union. The first step introduces the main descriptive ele-
ments of EU constitutionalism, highlighting some of the principal fields
in which constitutional debate is presently clustering. Step two elabo-
rates upon the tensions within EU constitutionalism by presenting a
conceptual approach focusing upon the ‘postnational’ and procedural
questions. Finally, in the third step, the paper sets out examples in order
to demonstrate how the conceptual framework fits more closely with the
emerging empirical reality of EU constitutional practices. It focuses
upon events surrounding the inter-governmental conferences at which
amendments to the EU treaties are agreed by the member states. The
aim of the paper is to locate some of the tensions and relations which
hold EU constitutionalism in place, rather than to capture its ‘essence’.
I. INTRODUCTION
This paper proceeds in three steps, the first one of which is essentially
descriptive. In order to explain in brief terms the status quo of the consti-
tutional question in the European Union, I initially introduce and then
sketch the key descriptive elements of EU constitutionalism. This will high-
light some of the principal areas where constitutional debate is clustering at
the present time and offer a preliminary systematization of what I term
the EU constitution ‘in practice’. I term the elements discussed the ‘pillars
of EU constitutionalism’.1The presentation proceeds out of a general
© Blackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Centre for the Study of Law in Europe, Department of Law, University of
Leeds, Leeds LS2 9JT, England
An earlier version of this material was presented at a seminar at the University of Aberdeen
in October 1999. My thanks to the participants in this seminar, and especially to Carole Lyons
and Neil Walker, for their questions, comments, and suggestions.
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JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 1, MARCH 2000
ISSN: 0263–323X, pp. 4–37
Process and Constitutional Discourse in the European Union
JO SHAW*
1I use this terminology in the knowledge that it might generate some confusion with the use
of the term ‘Pillar’ to describe the different frameworks within the European Union: First
5
© Blackwell Publishers Ltd 2000
problematization of the ‘constitutional question’ in the EU. The second
step then elaborates upon some of the tensions in EU constitutionalism
which emerge from this presentation by setting out a general conceptual
framework for approaching EU constitutionalism in terms of its ‘postna-
tionalism’. Building on earlier work,2the argument suggests that the post-
national ‘positioning’ of the EU, along with key procedural, dialogic, and
relational aspects of the process of EU polity formation, assist in the task
of understanding the emerging constitutional edifice as poised between
important normative questions about states, polities, and citizens and long-
standing questions about the nature and process of EU-based integration.
In other words, the focus upon dialogue and process is not for its own sake,
or pursued with a view to prescribing the correct direction which EU con-
stitutionalism should take, but is linked to an argument which highlights
the specific historically and geographically contingent features of the EU
integration process.
The third step generates a number of examples which seek to demon-
strate how the conceptual framework sketched in the second step enjoys
a close fit with current practices of EU constitutionalism. To that end, it
examines the more specific routine and rhythm of EU constitution-build-
ing, focusing upon the role of the inter-governmental conferences (IGCs)
which lead to the member states making amendments to the treaties, upon
the interventions of the Court of Justice and its various interlocutors, and
upon the possibilities for non-élite and non-state actors within civil society
to play a marginal but none the less discernible role in EU constitution-
building and polity formation. In particular, it highlights key aspects of the
Treaty of Amsterdam, which came into force in May 1999, and the events
and issue discussions which preceded it and subsequent and potential out-
puts resulting from the Treaty as an ongoing process of constitutional set-
tlement. Hence the focus is upon constitutional discourse.
In recent years, the range of thinking amongst lawyers about constitu-
tionalism in the EU context has gradually grown much more adventurous,
not least because of the emergence of the rather unusually structured EU
and because of the impact which the changed institutional framework and
operational modus with its greater variety of ‘methods’ has had upon the
Pillar: the EC, ECSC, and Euratom treaties; Second Pillar: Common Foreign and Security
Policy; Third Pillar: pre-Amsterdam: Co-operation in Justice and Home Affairs and post-
Amsterdam: Police and Judicial Co-operation in Criminal Matters. To distinguish the two
uses, I have used capital letters to distinguish the Second Pillar and Third Pillar, and so on.
2See, in particular, J. Shaw, ‘Postnational Constitutionalism in the European Union’ (1999)
6 J. of European Public Policy 579; J. Shaw, ‘Constitutionalism and flexibility in the EU:
developing a relational approach’ in Constitutional Change in the EU: from Uniformity to
Flexibility, eds. G. de Búrca and J. Scott (2000)(a); J. Shaw, ‘Constitutional Settlements and
the Citizen after the Treaty of Amsterdam’ in European Integration: Institutional Dynamics
and Prospects for Democracy after Amsterdam, eds. K. Neunreither and A. Wiener
(2000)(b).
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© Blackwell Publishers Ltd 2000
‘old’ European Community (EC) and its ‘method’ narrowly understood.3
At the same time, a wider interest in constitutionalism in the EU has
emerged also amongst political theorists, political scientists, and indeed,
scholars of international relations.4Any number of exogenous factors can
be identified as driving that turn: the rise of so-called ‘world constitution-
alism’ with its new post-Cold War hegemonies in relation to the role of law,
markets, and market-based institutions; simultaneous, sometimes counter-
vailing, tendencies towards regionalism and globalization, along with the
rise of identity politics and the idea of a constitutionalism of a ‘bottom-up’
variety driven by struggles for recognition and claim-making rather than
élite conceptions of the nature of the polity. Internal factors are also rele-
vant. For example, part of that interest in constitutionalism in the particu-
lar EU context continues to be driven still by a fascination most evident in
relation to the Court of Justice itself as an international judicial body
creating an international rule of law in transnational conditions, especially
as other international judicial bodies begin to take on some of the same fea-
tures.5Another part of the debate stems from a shift away from primary
concerns with the descriptive and positivist features of the substantive and
actually existing constitutional frame of the Union (the rules which make
the system work) towards problematizing the constructive potential of ‘the
3See, for example, K. Armstrong, ‘Legal Integration: Theorizing the Legal Dimension of
European Integration’ (1998) 36 J. of Common Market Studies 155; D. Curtin and I. Dekker,
‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’ in The
Evolution of EU Law, eds. P. Craig and G. de Búrca (1999); M. Everson, ‘Beyond the
Bundesverfassungsgericht: On the Necessary Cunning of Constitutional Reasoning’ (1998) 4
European Law J. 389; C. Joerges, ‘Taking the Law Seriously: On Political Science and the
Role of Law in the Process of European Integration’ (1996) 2 European Law J. 105; N.
MacCormick, ‘Democracy, Subsidiarity, and Citizenship in the ‘European Commonwealth
(1997) 16 Law and Philosophy 331; M. Poiares Maduro, ‘Europe and the Constitution: What
if this is As Good As It Gets?’ in Rethinking European Constitutionalism, eds. J. Weiler and
K. Wind (2000); N. Walker, ‘European Constitutionalism and European Integration’ [1996]
Public Law 266; id., ‘Theoretical Reflections on Flexibility and Europe’s Future’, in de Búrca
and Scott, op. cit., n. 2; J.H.H. Weiler, The Constitution of Europe (1999).
4R. Bellamy and D. Castiglione, ‘Building the Union: The Nature of Sovereignty in the
Political Architecture of Europe’ (1997) 16 Law and Philosophy 421; R. Bellamy and D.
Castiglione, ‘‘A Republic, if you can keep it’: The Democratic Constitution of the European
Union’ in The European Union and its Order, eds. Z. Ba´´nkowski and A. Scott (2000);
R. Bellamy and D. Castiglione (eds.), Constitutionalism in Transformation: European and
Theoretical Perspectives (1996); R. Bellamy, V. Bufacchi, and D. Castigione (eds.), Democracy
and Constitutional Culture in the Union of Europe (1995); A. Weale and M. Nentwich (eds.),
Political Theory and the European Union. Legitimacy, Constitutional Choice and Citizenship
(1998); D. Wincott, ‘Does the European Union Pervert Democracy? Questions of Democracy
in New Constitutionalist Thought on the Future of Europe’ (1998) 4 European Law J. 411.
5K. Alter, ‘Explaining National Court Acceptance of European Court Jurisprudence:
A Critical Evaluation of Theories of Legal Integration’ in The European Court and National
Courts-Doctrine and Jurisprudence, eds. A.-M. Slaughter, A. Stone Sweet, and J.H.H. Weiler
(1998), K. Alter, ‘Who Are the “Masters of the Treaty”?: European Governments and the
European Court of Justice’ (1998) 52 International Organization 121.
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