Editorial: The European Union as a Constitutional Experiment

• DOI: http://doi.org/10.1111/j.1468-0386.2004.00221.x
• Date: 01 July 2004
• Published date: 01 July 2004
• Author: George A. Bermann

Editorial: The European Union as a

Constitutional Experiment

George A. Bermann*

In the constellation of international governance régimes, the European Union occu-

pies a singular place, and not merely because it has recently engaged in the process of

drafting a document whose title includes the words ‘A Constitution for Europe’. Even

if that particular document, or any such document, were never to see the light of day

as a fully adopted and ratified instrument (an eventuality I consider to be unlikely), the

EU will already have been constitutionalised, albeit in a fashion unfamiliar to those

who, like most of us, are accustomed to the constitutions of Nation States. To claim

that the EU may properly be understood as a constitutional experiment may be to push

quite far the boundaries of what is an acceptable definition of a constitution, but that

is what the EU experience challenges us to do.

One best begins by not even mentioning the terms constitution or constitutional, but

rather by making a simple observation, albeit a seemingly paradoxical one. On the one

hand, the EU has in various iterations—the original European Coal and Steel Com-

munity,the European Economic Community, the European Community, the European

Union—travelled further along the road away from ‘pure’ intergovernmentalism than

virtually any other international governance régime, and than one might realistically

ever have imagined at the outset. No other international governance régime can even

plausibly present itself as governing a ‘polity’, especially a polity in the most day-to-

day, operational, ‘business as usual’ sense of the term.

And yet, viewed from a greater distance and over time, the EU does seem to be beset

by a pattern of vicissitude and more than occasional crisis. Some of these vicissitudes

and crises are not altogether unusual or atypical of constitutional régimes. (I think, by

way of example, of the resignation of the Santer Commission under pressure by the

European Parliament.) But others of them are more unusual, and their chronic char-

acter inevitably raises the question of just how much it is in the EU that has been ‘con-

stituted’. Surely the collapse last December in Brussels of the constitution-adopting

project is one of those.

But looking back over the years, we see many such moments: real threats of with-

drawal over budgetary imbalances, last minute nail-biting negotiations at virtually every

intergovernmental conference looking to amend the basic treaties, rejections and near-

rejections in national referenda on important stages in the integration process, and deep

embarrassment at the EU’s impotence in dealing effectively and constructively with

the violence that accompanied the disintegration of Yugoslavia in the Union’s own

European Law Journal, Vol.10, No. 4, July 2004, pp. 363–370.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Jean Monnet Professor of European Union Law and Walter Gellhorn Professor of Law Columbia Uni-

versity School of Law.