Antonio Vitorino: "The future European Constitution: what would Montesquieu think?"

(Conference « Maps and concept of Foreign Europe of countries and regions », Barcelona, 20 October 2003)

Ladies and gentlemen,

Introduction: a European Constitution

For the past year and a half the most important topic in Brussels has undoubtedly been the European Constitution. The Convention on the Future of Europe wrote a draft which, as you know, is now being discussed by the Intergovernmental Conference (IGC).

There is also intense discussion in our Member States on whether or not the Constitution weakens or reinforces the individual weight of national States, whether it should be submitted to referendum, or even whether it should be called a Constitution at all.

Should there be a President of the European Council, how can we define the role of the Minister of Foreign Affairs, who wins and who loses with the new voting mechanism_the issues are endless and fascinating, and as you imagine I have discussed them too many times.

I know that the devil is usually in the details, but we can also get lost in the details if we lose sight of the bigger picture.

And the first comment I have to make is that we have clearly embarked on a Constitutional journey. We have taken a Constitutional path. I know that there is much controversy on whether or not this document should be called a Constitution. But what does this option really mean?

A Constitution, written or not, is a powerful symbol. It is not a symbol, as some like to say, of the State. It is the symbol of the Citizen. It represents the rules of the game, where power is defined and limited, and the rights of persons defined and protected.

A Constitution is a guarantee. It is a conditio sine qua non for the exercise of power. Power with constitutional rules is delicate; without them it is dangerous.

It is in this light that we must look at the European project and the European Constitution. Power is exercised at the level of the European Union. It is power that is transferred from Member States, of course, but it touches upon the lives of citizens: the Union is no longer an economic project designed to improve trade and encourage growth. It is a political project designed to promote prosperity, peace and solidarity.

It is a project that wields power and as such we have two choices. The first is to regulate power through treaties that are agreed upon between Member States behind closed doors. The second is to enter a political contract with citizens, explaining who does what and how, and most importantly, what rights citizens have and what are the limits of Institutions.

That is why the single most important innovation in the draft Constitution is, in my opinion, the insertion of the Charter of Fundamental Rights of the European Union in the Treaty, with legally binding value.

We have the option of maintaining a sort of enlightened despotism, in which a dozen people secretly decide the fate of 450 million souls in twenty-five Member States, or we can take the path of democracy, in which citizens, not politicians, decide upon their own future.

And this is what we mean when we speak of European citizenship: the status of citizens in relation to European institutions, their respective rights and duties.

Let me be clear. If we choose democracy, a political contract with citizens, and a Union of States and peoples in which independence, autonomy and diversity are respected then we must take the Constitutional path.

I know that these are new approaches and ideas, and for that reason alone we often find resistance. I must confess that I sometimes wonder what the old legal philosophers, like Montesquieu would say if he saw us today engaged in this process.

Choosing a model

The most basic question in discussing the Constitution is, of course, what model do we want for the European Union? What powers should be exercised at a European level, and how should they be exercised?

As you know, under the current treaties, there is no easy answer to these basic questions. In this context, the Constitution innovated by clarifying the competencies exercised by the European Union.

This was done in several ways.

There is a comprehensive statement on the objectives of the Union, such as peace and well-being, sustainable development, a social market economy, or economic, social and territorial cohesion .

Three categories of competencies are created: exclusive competencies, in which only the Union may act ; shared competencies, in which the Union may act according to the principle of subsidiarity ; and complementary competencies , in which the Union may take complementary action, without however harmonising Member States laws.

The principle of subsidiarity is clearly defined, according to which action by the Union is taken only, and only if, it is more efficient at a European level, rather that at a national, regional or local level .

There is also a flexibility clause , which allows the Union to take action in areas in which it does not explicitly have competence, in order to pursue the objectives set by the Constitution. In this case, a proposal from the Commission, unanimity in the Council, and consent of the European Parliament are all required.

This guarantees clarity in the way the Union acts, and calms those who fear the future may bring a federalist nightmare. But clarifying competencies has another important function: it is a way of protecting diversity.

The EU is a Union of States and peoples, with their diversity and different forms of organisation. The Constitution is very conscious about protecting that diversity: it does so not only through a clear division of competencies and the principle of subsidiarity, but by establishing as the motto of the EU "United in diversity" .

It is never enough to emphasise that the Constitution wishes to protect cultural and political diversity. Indeed another innovation in the draft Constitution is the so-called "early warning system". This consists in the ability of national parliaments to examine the conformity of legislative proposals with the principle of subsidiarity.

There is also the possibility, ex post, for Member States and the Committee of the Regions to initiate judicial proceedings on the basis of violation of the principle of subsidiarity. Furthermore, a protocol on national parliaments obliges the Commission to send documents to national parliaments at the same time as they are sent to other institutions.

Of course, another way of ensuring that diversity is respected, and local problems taken into account, is by obliging institutions to listen. That is why the principle of participatory democracy is provided: in order to give citizens and representative associations the opportunity to make known their views, and to ensure that the Commission continues carrying out broad consultations.

Clarity and appropriate mechanisms such as the early warning system will ensure that the Union evolves in a well-defined direction, without threatening the uniqueness and internal organisation of each Member State. Don't make the mistake in thinking the solution is less Europe, or a more intergovernmental European project.

Indeed, it is not uncommon for us to hear the argument that the European project threatens cultural diversity. This is not only an exaggeration; it is simply not true. I cannot help remembering the added value of the European Union in certain international fora, for instance, in the World Trade Organisation. The European Commission negotiates on behalf of Member States, and it has consistently defended the so-called "cultural exception" in trade agreements.

Let's be clear: in a globalised world the European Union guarantees cultural diversity. To those critics who -complain that Member States are losing sovereignty, I fell like saying: take your sovereignty and try seeing what you can do with it.

Separation of powers

From an institutional point of view, there are three types of innovations in the Constitution that I want to emphasise.

First, the judiciary. In the current pillar system, as you know, jurisdiction of the Court of Justice is limited to the first pillar. This means that action in the areas of foreign policy and police cooperation and judicial cooperation in criminal matters is not subject to review by the Court. The same applies to the infringement procedure.

The draft Constitution extends jurisdiction of the Court to what is today the third pillar. In practice this means that the Court would be competent to inquire whether Member States had complied with instruments such as the European Arrest Warrant which is not the case today. Spain has complied, by the way.

My second point is about the legislative power. The Constitution abolishes the pillar structure, and one of the consequences is the extension of the jurisdiction of the Court. Another consequence is the generalisation of approval of legislative acts in co-decision between the Council and European Parliament. But this has a -deeper significance: that of ensuring that legislation has democratic legitimacy by involving the European Parliament. Increased democratic legitimacy and democratic control is the only possible way to move forward in a Union that wishes to gain the respect of its citizens.

Approval in the Council will also generally be carried out by qualified majority. It is important that we understand that unanimity will mean blockage in a Union of 25 or more Member States. That is why qualified majority should be the general rule wherever possible.

Finally, the executive. The composition of the Commission has, I know, raised some controversy. We all agree that we want to ensure is that the Commission is efficient in the way it exercises its functions and simultaneously respectful of the principle of equality between Member States. It is not easy to find the right formula. But I would say that that is the least of our concerns: the most important factor relating to the Commission, is that it remains the sole executive. It is, indeed, dangerous to run the risk of a double executive, in the Council and the Commission. A double executive would generate competition between the institutions and no one would benefit from that. But more importantly, a weak Commission would be a disadvantage to Member States because only the Commission guarantees the general interest. For that very reason I think a chairman of the European Council, with the functions and institutional framework described in the Constitution , is acceptable and may be an advantage. A double executive would not.

Conclusion

I will very honestly tell you that I don't believe the Constitution is perfect. A perfect document would have been written by me alone, it would only contain my own ideas, and it would have been written in a week.

This document was written by 210 European policymakers from 28 different States, from different political backgrounds, with very different ideas as to where Europe should go. This text represents a consensus that took sixteen months to mature.

And what do we have? Instead of three or four treaties which only the initiate understand, we have a single document, with a section devoted to fundamental rights, a clearer division of competencies between Member States, simpler language and a user friendly structure.

More: it contains an institutional structure and legislative procedure that is more democratic and efficient, and a wider jurisdiction of the Court of Justice.

In short, a clearer separation of powers and a greater protection of citizens.

It is not a perfect text; but even so, I think Montesquieu would be proud. And I here I finish, because as the author of the Esprit des lois wrote "What orators lack in depth they make up in length".

Thank you.