The Draft Constitutional Treaty: Between Problem-Solving Treaty and Rights-Based Constitution. EIPA Working Paper 04/W/2005

Fossum, John Erik and Menéndez, Agustín José. (2005) The Draft Constitutional Treaty: Between Problem-Solving Treaty and Rights-Based Constitution. EIPA Working Paper 04/W/2005. [Working Paper]

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Abstract

[Introduction]. The purpose of this paper is to establish which conception of a legitimate European Union the Draft Treaty establishing a Constitution for Europe (hereafter, ‘the Draft’)1 speaks to. We consider this paper as a further contribution to a collective research project on the European Union, which undertakes a broad-based empirical and normative analysis of the process of European integration (the CIDEL research project).2 Our specific aim is to undertake an empirical and normative analysis of the Laeken reform process, which complements a previous essay where we dealt with the constitution-making procedure followed in Laeken, and compared it both to previous Treaty amendment procedures and to a normative standard of democratic constitution-making.3 In this paper, we focus on the impact that the substantive provisions contained in the Draft Treaty could have on the ordinary democratic decisionmaking procedures once the text enters into force. That is, we try to determine, by means of looking at certain concrete components of the substantive contents of the Draft how law-making will be structured in the Union (if it is organized according to the Draft), and based on this try to infer what type of entity the Draft propounds, as well as which mode of legitimacy it endorses. In more concrete terms, we consider a range of markers, six in all (out of which four have here been applied to the Draft).4 We see these as key indicators for discerning the structure of democratic procedures, both in terms of how deliberation and decision-making proceed, as well as with regard to the substantive contents that laws are expected to uphold and develop. These indicators or markers are also useful for shedding light on the nature of the entity and its democratic legitimacy. The specific ‘markers’ which we will be considering are: • the distribution of competences; • the law-making process; • fundamental rights; • the underlying conception of cultural community.

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