Drafting a European Constitution – Challenges and Opportunities

These reflections address two tasks prompted by current controversies concerning whether the EU needs a written constitution. Normative considerations do not seem to require a constitution now – nor does such a constitution appear illegitimate in principle, hence it is normatively permissible in principle. Secondly, the Convention is called and composed in such a way as to exacerbate some risks, while reducing others, with ramifications for the legitimacy of the process and the normative quality of any resulting document. In particular, arguments must be provided both in favour and against centralisation of competences, to facilitate their best allocation. Given the participation of centralisation-prone institutions such as the European Parliament, the inclusion of national parliaments is welcome. Yet a disinterested stance is less likely insofar as many of the institutions are represented at the Convention, and especially insofar as an all-out crisis does not loom large. Bargaining solely for own institutional advantage is tempting, yet the credibility of the result requires that the institutions secure justice among Europeans and not least: that the institutions are seen to be so secured. A central challenge is to foster within the Convention a general and public attitude of commitment to ‘the European interest.’ This counts in favour of public scrutiny of the process, even though such transparency may constrain drastic and creative restructuring. Transparency may prevent anything more than incremental tinkering but that may be sufficient, and all that may reasonably be expected.