Professional Documents
Culture Documents
* Director, Max Planck Institute for Comparative Public Law and International Law, Heidelberg. I would like
to thank my colleague Rdiger Wolfrum for his fruitful criticism and my assistants, Stefan Huler and
Dietrich Westphal, for their help in researching the relevant literature. Email: sekreavb@mpil.de
1
ERNST HAAS, THE UNITING OF EUROPE 16 (Stanford Univ. Press 1958); Ulrich Meyer-Cording, Die
Europische Integration als geistiger Entwicklungsproze [European integration as a process in mental
development], 10 ARCHVR 42, 45, 49, 58ff., 68 (Mohr Siebeck 1958). For the recent debate, see
Maria Zanichelli, LEuropa come scelta [Europe as choice], 31 QUADERNI FIORENTINI PER LA STORIA DEL
PENSIERO GIURIDICO MODERNO 917 (2002).
2
Document on European Identity, adopted by the Foreign Ministers of Member States of the
European Communities on 14 December 1973 in Copenhagen, Europa-Archiv Folge 2/1974,
D 50. In the absence of institutionalization by the European Council, formal adoption rested with
the Foreign Ministers of the member states.
3
Detailed data on this point can be found in the Eurobarometer, at http://europa.eu.int/comm/
public_opinion/archives/eb/eb59/eb59_en.htm.
4
Preface, Draft Treaty establishing a Constitution for Europe, 2003 O.J. (C 169) 1 (Aug. 18,
2003).
ICON, Volume 3, Numbers 2 & 3: Special Issue May, 2005, pp. 295315
doi:10.1093/icon/moi021
Oxford University Press and New York University School of Law 2005. All rights reserved. For permissions
please email journals.permissions@oupjournals.org
296
groups.5 However, absent such stresses, this merely implies a civil form of
interaction, not a common identification of citizens with the political organization (that is, a we).6 Assertions that such an identity is necessary for a
communitys viability are generally not well-proven conclusions of empirical
research but, rather, axioms of normative theories that advocate communal
spirit and public unity.7 The term identity is attractive for such theories
because it allows for the concealment of normative premises.8
Nonetheless, the scientific debate affords sufficiently plausible support for
the following assertion: the development of a collective identity can be helpful
for the viability of a political community. Note, however, that this assertion
does not allow normative conclusions. The basic rights to freedom of conscience, speech, and association make any legal requirement to identify with a
specific we highly problematic, as it would touch the core of an individuals
autonomy and dignity.9 Thus, even if there were a proven need for a common
5
See especially Hermann Heller, Politische Demokratie und soziale Homogenitt [Political democracy and
social homogeneity], in 2 GESAMMELTE WERKE 421 (1971). According to Heller, the Weimar Republic
depended on a single circumstance: the ruling classes needed to convince the proletariat that it
could improve its material well-being within the process of the Weimar Constitution. Contrary to
the famous quotation by the Federal Constitutional Court in its even more famous Maastricht
judgment (BVerfGE 89, 155, 186), Heller disregards the integration function of substantial homogeneity. The factors for integration and identity (e.g., common language, history, and culture),
which the Federal Constitutional Court considers as decisive, and on which it refers to Heller, are
considered by Heller as phenomena of the past. Id. at 429.
6
The conceptual counterpart, which is skeptical of identity, would focus instead on the decisionmaking processes, which must accomodate the many forms of diversity. For a detailed treatment,
see Armin von Bogdandy, Europische und nationale Identitt: Integration durch Verfassungsrecht?
[European and national identity: Integration by constitutional law] VVDSTRL 62, 157, 178ff. (2003).
For evidence that the need for collective identity is often overestimated, see Freidhelm Neidhardt,
Formen und Funktionen gesellschaftlichen Grundkonsenses [The form and function of social consensus],
in BUNDESVERFASSUNGSGERICHT UND GESELLSCHAFTLICHER GRUNDKONSENS [THE FEDERAL CONSTITUTIONAL
COURT AND SOCIAL CONSENSUS] 15, 16f., 26f. (Gunnar Folke Schuppert & Christian Bumke eds.,
Nomos 2000). See also Hans-Hartwig Bohle et al., Anomie in der modernen Gesellschaft [Anomy in
modern society], in WAS TREIBT DIE GESELLSCHAFT AUSEINANDER? [WHAT DRIVES SOCIETY APART?] 29, especially 54ff. (Wilhelm Heitmeyer ed., Suhrkamp 1997); RALF DAHRENDORF, GESELLSCHAFT UND
DEMOKRATIE IN DEUTSCHLAND [SOCIETY AND DEMOCRACY IN GERMANY] 161ff., 174f. (R. Piper & Co.
1965); Erhard Denninger, Integration und Identitt [Integration and Identity], 34 KJ 447 (2001).
8
For a sharp and well founded critique of the use of the term identity in many discourses, see LUTZ
NIETHAMMER, KOLLEKTIVE IDENTITT, HEIMLICHE QUELLEN EINER UNHEIMLICHEN KONJUNKTUR [COLLECTIVE
IDENTITY: HIDDEN SOURCES OF AN UNCANNY SITUATION] 33ff (Rowohlt 2000).
9
Ernst-Wolfgang Bckenfrde, Das Grundrecht der Gewissenfreiheit [The fundamental right to liberty],
in ERNST-WOLFGANG BCKENFRDE, STAAT, VERFASSUNG, DEMOKRATIE [STATE, CONSTITUTION, DEMOCRACY]
200, 219, 226f., 241f. (Suhrkamp 1991); Erhard Denninger, Streitbare Demokratie und Schutz
der Verfassung [Contentious democracy and constitutional protection], in HANDBUCH DES
VERFASSUNGSRECHTS [TREATISE ON CONSTITUTIONAL LAW] 16, Nr. 75 (Ernst Benda et al. eds., 2d ed.
1994). See Unified Communist Party v. Turkey 1 Eur. Ct. H. R. 1 (1998), para. 57; Sidiropoulos
and Others v. Greece, 4 Eur. Ct. HR 1 (1998), para. 44; Party for Freedom and Democracy (zdep)
A. von Bogdandy
297
political identity (which is not the case), normative conclusions would still
face important obstacles. With a focus on hermeneutics, prognosis, and, to
some degree, ideological critique, this article surveys some relevant aspects of
the Treaty establishing a Constitution for Europe (hereinafter, constitutional
treaty or CT) as concluded by the intergovernmental conference on June 18,
2004,10 and highlights some significant changes with respect to the earlier
draft presented by the European convention in July 2003 (hereinafter, draft
constitutional treaty or draft CT).11
1.2. Collective identitywhat is it?
v. Trkey 31 Eur. Ct. H. R. 674 (1999), para. 44; Stankov and the United Macedonian
Organisation Ilinden v. Bulgaria X Eur. Ct. H. R. X (2001), para. 102. For an analysis, see Julie
Ringelheim, Identity Controversies Before the European Court of Human Rights: How to Avoid the
Essentialist Trap?, 3 GERMAN LAW JOURNAL (2002), available at http://www.germanlawjournal.com.
10
Conference of the Representatives of the Governments of the Member States, IGC 2003Meeting
of Heads of State or Government, Brussels, 17/18 June 2004, CIG 85/04, PRESID 27 (June 18,
2004), available at http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/misc/ 81109.pdf.
11
Draft Treaty, supra note 4. Among the early analyses of the draft constitution, see Florence
Chaltiel, Une Constitution pour lEurope, An I de la Rpublique Europenne [A Constitution for Europe:
Year One of the European Republic], REVUE DU MARCH COMMUN ET DE LUNION EUROPENNE 471, 493
(2003); Paul Craig, What Constitution does Europe Need? The House That Giscard Built, THE FEDERAL
TRUST, August 2003; Michael Dougan, The Conventions Draft Constitutional Treaty: A Tidying-Up
Exercise that needs some tidying-up of its own, THE FEDERAL TRUST, August 2003; J. O. Frosini et al.,
I lavori della Convenzione europea [The work of the European convention], QUADERNI COSTITUZIONALI 387
(2003); Daniel Halberstam et al., Making It Our Own, A trans-European proposal on amending the draft
Constitutional Treaty for the European Union, at http://www.umich.edu/~iinet/euc/MiscHTML/
EUnews.html; Fabienne Kauff-Gazin & Martin Pietri, Premires analyses du projet de Constitution
Europenne [Initial analyses of the European constitutional project], EUROPE - DITIONS DU JURIS-CLASSEUR
Nr. 3 (2003); Bertrand Mathieu & Michel Verpeaux, Brves remarques sur le projet de Constitution
Europenne [Some brief remarks on the European Constitution project], 45 LA SEMAINE JURIDIQUE 1909f.
(2003); Andreas Maurer, Schliet sich der Kreis? Der Konvent, nationale Vorbehalte und die
Regierungskonferenz [Coming full circle? The convention, national reservations, and the intergovernmental
conference], Teil I, at http://www.swp-berlin.org/pdf/brennpunkte/eukonvregkonfanalyse01.
pdf; Jrgen Meyer & Sven Hlscheidt, Die europische Verfassung des Europischen Konvents [The
European constitution of the European convention], EUZW 613 (2003); Jos Martn y Prez de
Nanclares, El proyecto de Constitucin europea: Reflexiones sobre los trabajos [The European
Constitution project: Reflexions on the work thus far], REVISTA DE DERECHO COMUNITARIO EUROPEO 527
(2003); Michael Pinto-Duschinsky, All in the translation What the proposed European Constitution
means for Britain, TLS, 13 Jun. 2003, 3; Thomas Oppermann, Eine Verfassung fr die Europische
Union [A constitution for the European Union], DVBl., Part 1, 1165, Part 2, 1234 (2003); Jrgen
Schwarze, Ein pragmatischer Verfassungsentwurf [A pragmatic draft constitution], EUR 535 (2003).
12
The linkage of collective identity to psychological processes of individual citizens appears advisable in order to avoid problematic essentializations, Ulfrid Neumann, Wissenschaftstheorie und
298
On the following, see ORIETTA ANGELUCCI, ZUR KOLOGIE EINER EUROPISCHEN IDENTITT [ON THE
ECOLOGY OF A EUROPEAN IDENTITY], 33ff., 53ff. (Nomos 2003), which bases itself on the theory of
social identity. See especially, HENRI TAJFEL, HUMAN GROUPS AND SOCIAL CATEGORIES: STUDIES IN SOCIAL PSYCHOLOGY (Cambridge Univ. Press 1981) and the theory of social representation in SERGE MOSCOVICI,
LA PSYCHANALYSE, SON IMAGE ET SON PUBLIC [THE PSYCHOANALYST: IMAGE AND AUDIENCE] (PUF 1961) and
SOCIAL REPRESENTATIONS (Robert Farr & Serge Moscovici eds., Cambrige Univ. Press 1984).
14
This terminology is well established; see, e.g. UNANIMA PER LEUROPA. LESSICO DI UNIDENTIT POLITICA
[EUROPEAN SPIRIT: A LESSON IN POLITICAL IDENTITY] (Furio Cerruti and Enno Rudolph eds., ETS 2002).
15
It seems almost impossible to predict the number of years before a collective identity is established. The decade would probably be a proper unit of measurement. But see ANGELUCCI, supra note
13, at n.160, 163f., shows that demonstrable changes can occur during a period of five years.
16
A. von Bogdandy
299
A constitution, certainly, can only be one element in a broad, social evolution that shapes the identities of citizens.17 It is, moreover, a long way from a
constitution, which is initially a mere constitutional text, to the psychological
processes of self-categorization by citizens. It is useful to distinguish between
direct and indirect effects. A constitution directly affects identity formation, if
it is a criterion per se for the relevant identity process. This would require that
the large majority of citizens identify and affiliate with their group on the basis
of the constitution, as such, or on the basis of specific constitutional principles.
In turn, constitutional law indirectly affects identity formation when it shapes
or creates the relevant criteria that then form identity. In any event, a constitutions identity-forming force depends on suitable starting points for citizens
identification processes. This article analyzes the constitutional treatys
potential from this perspective.
This can be demonstrated by comparison with Germany, where the identity-forming role of the
Basic Law seems rather important. See J. Gebhardt, Verfassungspatriotismus als Identittskonzept der
Nation [Constitutional patriotism as national identity], AUS POLITIK UND ZEITGESCHICHTE B 14/93, 31,
n.33 (1993); M. RAINER LEPSIUS, INTERESSEN, IDEEN UND INSTITUTIONEN [INTERESTS, IDEAS, AND
INSTITUTIONS] 63, n.77 (Westdeutscher 1990); H. Rausch, Politisches Bewutsein und politische
Einstellungen im Wandel [Political consciousness and political attitudes in flux], in DIE IDENTITT DER
DEUTSCHEN [GERMAN IDENTITY] 119, 130 (Werner Weidenfeld ed., Hanser 1983). On the relevant
role of the Federal Constitutional Court, see the articles in Schuppert & Bumke, supra note *; Ulrich
Haltern, Integration als Mythos [Integration as myth], JR 45 (1997); Josef Isensee, Die Verfassung als
Vaterland [The constitution as the fatherland], ALLMANACH 71 (1988).
18
BENEDICT ANDERSON, DIE ERFINDUNG DER NATION [THE INVENTION OF THE NATION] (Campus 1996);
KARL DEUTSCH, NATIONENBILDUNGNATIONALSTAATINTEGRATION [NATION-FORMATION, NATION-STATE,
INTEGRATION] (Bertelsmann Universittsverlag 1972); ERNEST GELLNER, NATIONALISMUS UND MODERNE
[NATIONALISM AND MODERNITY] (Rotbuch 1991); ERIC HOBSBAWM, NATIONEN UND NATIONALISMUS
[NATIONS AND NATIONALISM] (2d ed. 1992); HAGEN SCHULZE, STAAT UND NATION IN DER EUROPISCHEN
GESCHICHTE [STATE AND NATION IN EUROPEAN HISTORY] (2d ed., Beck 1995).
19
JEAN-FRANOIS LYOTARD, DAS POSTMODERNE WISSEN [POSTMODERN WISDOM] 63ff., 112 (4th ed.,
Passagen 1999); JEAN-FRANOIS LYOTARD, DER WIDERSTREIT [THE CONFLICT] 12, 251ff. (2d ed., Fink
1989).
300
be cited showing how an intellectual elite construed a narrative out of amorphous historical material, which it then used as a common whence (or
where we are from) for a planned, emerging, or existent group.20
Whence narratives circulating within European societies vary greatly
from nation to nation. This is hardly astonishing, since they originated at a
time when mutual dissociation was politically desired by most European states.
At present, no socially anchored, pan-European narrative unites most Union
citizens under a persuasive, common whence.
Considering both the contingency and construction of the current
narratives, a project to write a new and common European history seems
possibleif it can pursue, in a sustained way and with the proper instruments,
the (re)interpretation of the historical materials. In text-centered culture, such
as Europe, it stands to reason that the contours of a groups whence can be
written into the fundamental document of its political structure. To the extent
that a constitution is supposed to contribute to such a narrative, the preamble is
particularly well suited to the task.21 Indeed, the constitutional treaty attempts
in its preambleas do many of the new constitutions of Central and Eastern
Europeto establish the contours of such a narrative. The preamble can
directly affect identity formation through the promulgation and reading of the
preamble itself. Or it can indirectly influence the relevant narratives and,
thus, the concomitant constructions of reality by providing an origin for further
constructions, such as are found in educational materials.22
At this point, one encounters a most remarkable difference between the
constitutional treaty and the conventions draft. The convention tried to
anchor a common European narrative in a myth that was deleted by the intergovernmental conference. The convention puts at the beginning of the draft
constitutional treaty not words but a picture. For the formation of identity, this
appears to have been a shrewd move, since a picture, as is often said, is worth
a thousand words. A picture can frequently deliver a thought with much
greater impact than language. This is especially true in the multilingual
European Union with its translation problems. On opening the conventions
20
21
301
A. von Bogdandy
draft constitutional treaty, the Union citizen sees two lines of ancient Greek
letters. Since only a small, vanishing segment of the population still has
knowledge of ancient Greek, most Union citizens do not perceive a thought,
expressed in words, but an image with various associations. One might assume
that this pictureassisted by the name Thucydidesevokes ancient Greece.
For most Europeans, ancient Greece represents a myth. A myth is a founding
narrative, a story told to illuminate the present by the light of its origins, told
to orient oneself in time and space. A myth contains a truth of a higher order,
thus providing normative standards with formative power.23 It can unite
separate individuals, by way of a shared self-conception and shared knowledge, into a we: not only in jointly binding rules and values but also in memory
of a shared past.
The Hellenic enthusiasms of the late 18th and early 19th centuries still
largely determine the content of this mythical Greece. Ancient Greece is the
realm of beautiful freedom,24 evocative of dashing heroes like Hercules,
Achilles, and Odysseus;25 of a world that crafted eternal works of art, philosophy, and science; of free and virtuous citizens prepared to fight despotism. The
world of ancient Greece represents the Other to our present, petty-minded
epoch, which nevertheless is still bound to its standards. It is no mere coincidence that the most celebrated Western cultural critic was a classical philologist:
Friedrich Nietzsche. It is no coincidence that Whitehead described the whole of
Western philosophy as footnotes to Plato.26 Scholarly research into the far less
luminous reality of ancient Greece has hardly dimmed the myths radiance.27
The image as an introduction to the constitution for Europe evokes an attractive and accessible idea of where we come from and which moral and cultural
standards we consider authoritative.28 Although many countries claim to be
ancient Greeces heirs, most Europeans would assert that their claim is the
strongest; this is one facet of the European idea that is universal and particular
at the same time, emblematizing a narrative that relates to widespread and positive associations and common knowledge. This symbolism is maintained, in no
small part, by the entertainment industryalmost always with positive depictions. With its opening quotation from Thucydides, the draft constitutional
treaty professed its allegiance to this myth and claims it as its own.
23
24
JAN ASSMANN, DAS KULTURELLE GEDCHTNIS [CULTURAL MEMORY] 52, 75f. (3rd ed., Beck 2000).
GEORG W.F. HEGEL, VORLESUNGEN BER DIE PHILOSOPHIE DER WELTGESCHICHTE [LECTURES
PHILOSOPHY OF WORLD HISTORY] I, 249 (Johannes Hoffmeister ed., 1955).
ON THE
25
In this sense, the Ode, which underlies the anthem of the Union (see art. IV-1, subpara. 2, CT),
sings of an especially radiant figure of Greek mythology.
26
ALFRED NORTH WHITEHEAD, PROZE UND REALITT [PROCESS AND REALITY] 91f. (Suhrkamp 1979).
27
On the recent research, see WOLFGANG SCHULLER, GRIECHISCHE GESCHICHTE [GREEK HISTORY] 82ff.
(Oldenbourg 1980).
28
To what degree ancient Greece represents a similar myth to the Muslim world is an entirely
separate topic.
302
All this has been completely deleted from the constitutional treaty, however.
Instead, it starts by referring to the relevant political authorities of the member
states. Rather than being based on a distant myth, the Unions constitution is
based on the highest-level political representatives of the member states. The constitutional treaty then refers to the cultural, religious and humanist inheritance
of Europe, but these words do not evoke any myth, and certainly no golden age.
Moreover, the past to which the constitutional treaty is linked is quite different;
it is a past that the convention largely neglected. The conventions preamble lacks
any clear allusion to the genesis of European integration: the catastrophes of the
twentieth century and particularly World War II. Such a reference could also
have provided a useful answer to the question why?: the architects of Europe
emerged from the horrors of the second World War determined to prevent even
the possibility that something similar could reoccur.29 To instill these experiences
and this resolve in a constitutional document, with a formulation that is accessible and agreeable for most citizens of all member states, seems to be the most
important challenge for the preamble to a European constitution that attempts to
offer a persuasive whence narrative. One might counter that the conventions
preamble does refer to the ancient division that is to be transcended, and
article I-3, paragraph 1, declares that the Unions aim is to promote peace.
These, however, are insubstantial, abstract formulations that squander the
persuasive power of the catastrophic imagery.
The intergovernmental conference introduced the words after bitter
experiences30 into the conventions third recital31 of the preamble. With
these words, the constitutional treaty creates links to the innumerable personal narratives, continuing within many families, of the catastrophic events
of the twentieth century. These links appear as possible grounds for a common
interpretation of crucial historic events that might also imbue the European
Union with a deep significance. Perhaps the objection will arise that the formula bitter experiences provides only a minimal reading, since neither
names nor events are indicated nor is there any allocation of responsibility.
Yet, this small common ground might present a better base for a European
identity than the glorious, but distant, myth of ancient Greece.
An echo of the catastrophe resounds in the event that the CT (art. I-6a,
subpara. 5) and the draft CT (art. IV-1, subpara. 5) celebrate as Europe Dayan
29
Ulrich Everling, The EU Between Community and National Policies, in PRINCIPLES OF EUROPEAN
CONSTITUTIONAL LAW (Armin von Bogdandy ed., 2005 forthcoming). See the fifth recital of the preamble to the European Coal and Steel Community Treaty of 18 April 1951 (BGBl, Part II, 447
(1952)).
30
The English version reads reunited after bitter experiences; similar to the French and Italian,
dsormais runie; other versions, however, are not so euphemistic. In the German, for example,
there is no previous stage of European unity: nunmehr geeintes Europa; the Hungarian version
proposes a further aspect by considering Europe as jraegyesl, i.e., as reuniting.
31
A. von Bogdandy
303
For the background, see e.g., BINO OLIVI, L EUROPA DIFFICILE [EUROPEAN DIFFICULTY] 30ff. (Il Mulino
1998).
34
35
Joseph H.H. Weiler, To be a European citizen: Eros and civilization, in JOSEPH H.H. WEILER, THE
CONSTITUTION OF EUROPE 324, 338f. (Cambridge Univ. Press 1999); Ulrich Haltern, Europischer
Kulturkampf [European Kulturkampf], 37 DER STAAT 591, 620 (1998); MICHAEL ZRN, REGIEREN
JENSEITS DES NATIONALSTAATES [GOVERNING BEYOND THE NATION-STATE] 257, 348 (Suhrkamp 1998).
36
304
part of the majority of the Dutch are not a prerequisite to a Dutch self-perception
of belonging to a common group with the Germans.
The constitutional treatys self-designation as a constitution for Europe is perhaps its strongest contribution to promoting a sense of group membership among
Union citizens. Considering the public debate that accompanied the convention
and the ratification of the constitutional treaty, a majority of Union citizens will
consider the use of the term constitution as symbolic, namely, that there is a
common political community to which they all belong. Many will see the shift
from treaty to constitution as the will, made manifest, of their national representative institutions to form a single group among European peoples.
Certainly, the terminology used to designate the document is remarkably
ambivalent. Given the relevant public debate, treaty suggests much less of a
we among Union citizens than does constitution. Thus, the ambivalence
in the terminology is actually an ambivalence over the Unions course of development. Many provisions even suggest an understanding that is redolent more
of international law than constitutional law; for example, the provisions on
ratification and revision in articles IV-443447 of the constitutional treaty
(arts. IV-78 draft CT). The compromise designation, Treaty establishing a
Constitution, seems to allow for both courses of development. The intergovernmental conference strengthens this reading significantly by placing the
heads of government at the head of the preamble.
Nonetheless, usage seems to be settling on the designation constitution
rather than treaty or constitutional treaty. This more concise term,
constitution, suggested forcefully even by the format of the IGC document, has
apparently prevailed in the public debate. If this term becomes commonplace
and, more importantly, if constitution becomes an important rhetorical term
for European politics, as has Grundgesetz (Basic Law) in Germanythen the
constitution will become a powerful entry in the dictionary of European collective identity. Union citizens will frequently come across a term that consistently
promotes their self-concept as a group organized by the European Union.
Such an understanding finds further support in the constitutional treaty.
First, it asserts that the different peoples of the member states form one society
(art. I-2, sentence 2).37 Moreover, the third recital of the preamble (formerly
the fourth recital of the draft CT) states that the peoples of Europe are determined . . . united ever more closely, to forge a common destiny. The preamble
thereby invokes one of the strongest concepts for the formation of a group: the
community of destiny.38 The singular common destiny, applied to all of
the involved peoples, implies that future challenges will not fall to any specific
people; rather, all European peoples will share a single common future.
37
The CT skillfully uses the potentials offered by the conceptual pairs peoplesociety and culture
civilization.
38
Among the prominent French intellectuals, see e.g., EDGAR MORIN, PENSER LEUROPE [THINK EUROPE]
(Gallimard 1987) (the Italian edition, PENSARE LEUROPA 129ff. (Feltrinelli 1990), is cited here).
A. von Bogdandy
305
See Hermann-Josef Blanke, Essentialia des Entwurfs des Europischen Verfassungsvertrages [The
draft European constitution: Essentials], RIVISTA EUROPEA DI CULTURA E SCIENZA GIURIDICA 95, 147
(2003).
41
Conclusions of the Presidency of the Tampere European Council, Bull. EU 101999, 7ff. On the
darker implications of the Groraum, see Christian Joerges, Europe a Groraum? Shifting Legal
Conceptualisations of the Integration Project 167, 189ff., and John McCormick, Carl Schmitts Europe:
Cultural, Imperial and Spatial Proposals for European Integration, 19231955 133, 140f., both in
DARKER LEGACIES OF LAW IN EUROPE (Christian Joerges & Navraj S. Ghaleigh eds., Hart 2003).
306
The Single European Act (SEA) introduced the legal concept of area in the
definition of the internal market.42 The next stage was the Treaty of Amsterdams
area of freedom, security and justice.43 With that treaty, the Union also became
a defensible area.44 The constitutional treaty, in its fourth recital, makes of it a
special area of human hope. The draft constitutional treaty even starts with a
geographical reference, namely, the continent of Europe; however, the IGC
deleted this without substitution.45 A shift in association of the European Union
from an organization in Brussels to an area, in which Union citizens live, would
be a significant step toward establishing a European identity.
2.2.2. A chosen community
Art. 13 SEA; art. 14, para. 2 EC; art. III-14, para. 2 CT.
43
(Art. 2, indent 4 EU; art. I-3, subpara. 2 CT). On the history of the area of freedom, security
and justice, see http://europa.eu.int/comm/justice_home/key_issues/step_by_step/step_by_
step_09_2002_de.pdf.
44
Art. 11, para. 1, indent 1 EU, integrity of the Union; art. I-40 CT.
45
Here, the draft constitution employs a half-truth: Europe is not a continent but a subcontinent.
46
Cf., e.g., VINCENZO GIOBERTI, DEL PRIMATO MORALE E CIVILE DEGLI ITALIANI [MORAL AND CIVIL SUPREMACY
OF THE ITALIANS] (1843); GEORG W.F. HEGEL, VORLESUNGEN BER DIE PHILOSOPHIE DER GESCHICHTE [LECTURES
ON THE
47
48
For more on the final movement of Beethovens Ninth Symphony, converted in 1972 by Herbert
von Karajan into the European anthem, see Caryl Clark, Forging Identity: Beethovens Ode as
European Anthem, 23 CRITICAL INQUIRY 789 (1997). On the symbols, see generally MARKUS GLDNER,
POLITISCHE SYMBOLE DER EUROPISCHEN INTEGRATION: FAHNE, HYMNE, PA, BRIEFMARKE, AUSZEICHNUNGEN
[POLITICAL SYMBOLS OF EUROPEAN INTEGRATION: FLAG, HYMN, PASSPORT, STAMP, HONORS] (Lang 1988).
A. von Bogdandy
307
Further, the flag (as determined in article I-6, subparagraph 1 CT; art. IV-1,
subpara. 1 draft CT) strongly, if also subtly, confirms the vision of Europeans
as an exceptional people. Here, the circle of twelve golden stars is of particular
significance, as it elicits connotations of Europeans as a chosen people in the
Christian tradition.
The circlea line that infinitely returns to itselfis simultaneously the
simplest and the most complete geometric form. Without beginning or end, it
is a representation of eternity, as are the stars that compose it. The choice of
twelve stars is not a miscount (despite the fact that there are twenty-five member states) but part of an intentional scheme. As the number of the closed
circle, twelve is the most symbolic of all numbers: the twelve tribes of Israel,
Christs twelve apostles, the heavenly Jerusalems twelve gates. And twelve
stars, arranged as a wreath, form the crown of the woman of the apocalypse.
The Revelation of John 12:12 reads: And there appeared a great wonder in
heaven; a woman clothed with the sun, and the moon under her feet, and
upon her head a crown of twelve stars: And she being with child cried,
travailing in birth, and pained to be delivered. Prominent readings interpret
the crown of twelve stars as a sign of the birth of the messiah, of the people
of God,49 or of a universal, new beginning of history itself.50 Thus, the flag
encompasses a promise of salvation, election, and predestination.
2.2.3. A community of values
C. BRTSCH, DIE OFFENBARUNG JESU CHRISTI [THE REVELATION OF JESUS CHRIST] 56ff. (1955); ALFRED
WINKENHAUSER, DIE OFFENBARUNG DES JOHANNES [THE REVELATION OF JOHN] 92f. (1959); R. DAMERAU, DIE
OFFENBARUNG DES JOHANNES. NACH EINEM KOMMENTAR DES REFORMTHEOLOGEN JOHANNES HAGEN (DE
INDAGINE) [A COMMENT BY THE REFORM THEOLOGIAN JOHANNES HAGEN] 120 (1984); JOHANNES BEHM, DIE
OFFENBARUNG DES JOHANNES 64f. (1949); EDUARD LOHSE, DIE OFFENBARUNG DES JOHANNES 62 (1960).
50
51
Jrgen Schwarze, supra note *, at 535, 539ff.; B. Wgenbauer, Die Europische Verfassung, (k)ein
Platz fr abendlndische Werte? [The European constitution: What place for Western values?], EUZW 609
(2003).
52
Friedhelm Neidhardt, supra note *, 15, 27f.; on the role of principles, see Dieter Fuchs, Demos und
Nation in der Europischen Union [Demos and nation in the European Union], in ZUR ZUKUNFT DER
DEMOKRATIE [THE FUTURE OF DEMOCRACY] 215, 230ff. (Hans-Dieter Klingemann & Friedhelm
Neidhardt eds., Sigma 2000); on the social functions of promulgating highly abstract values, see
Gert Degenkalbe, ber logische Struktur und gesellschaftliche Funktionen von Leerformeln [On the
logical structure and social function of naked formulas], 17 KLNER ZEITSCHRIFT FR SOZIOLOGIE UND
SOZIALPSYCHOLOGIE, 327, 333ff. (1965).
308
could be stimulated, while the abstract nature of such values would keep
dissent hidden. In constitutional theory, this is described as a constitutions
manifesto function.53
This approach has played to great effect in European constitutional politics.
The efforts to represent the Union as an expression of the ethical convictions
of Union citizens explains the rise of the term value as a key constitutional
concept. Its first spectacular appearance was in the year 2000, in the first
recital of the Charter of Fundamental Rights (now integrated into the constitutional treaty), which declares common values to be the basis of the Union.
The term is also the hub of the constitutional treatys first recital and even
found its way into a prominent position in its operative part (arts. I-1, para. 2
and I-2 CT).54
Values are normative convictions of a highly abstract order and are part
of the social identity of the individual.55 With its recourse to values, the
constitutional treaty asserts its roots in the ethical convictions of an
overwhelming majority of Union citizens. It presents the entire Union citizenry
and the Union itself as a community of values.56 Scholars of European law
will recognize that this model goes beyond Walter Hallsteins merely legal community. It would not be difficult to characterize this as an assertion of normative homogeneity, the advancement of which could then become an aim of the
EU, pursuant to article I-3, paragraph 1 CT. It is exactly at this point that the
duty to respect national identities (art. I-5, para. 1 CT) must perform its limiting function.57
With the term value, the constitutional treaty posits an identity of Union
citizens that connotes similar expectations both of the political system and of
53
G. Frankenberg, Die Rckkehr des Vertrags [Return of constitution], FS HABERMAS 507, 513ff.
(2001).
54
In contrast, one can also infer the Unions lack of rootedness from the prominence of the values.
This, however, only confirms the constructive will which underlies the CT.
55
The history of the concept value is complex. See, e.g., Christian Starck, Zur Notwendigkeit einer
Wertbegrndung des Rechts [The necessity for normative values in the law], and Ernst-Wolfgang
Bckenfrde, Zur Kritik der Wertbegrndung des Rechts [Criticism of normative values in the law], both
in RECHTSPOSITIVISMUS UND WERTBEZUG DES RECHTS [POSITIVE RIGHTS AND VALUES IN THE LAW] 33, 45f., 47
(Ralf Dreier ed., Steiner 1990); NIKLAS LUHMANN, GIBT ES IN UNSERER GESELLSCHAFT NOCH UNVERZICHTBARE NORMEN? [WHAT ARE OUR INDESPENSABLE SOCIETAL STANDARDS?] 18ff. (Mller 1993); JRGEN
HABERMAS, FAKTIZITT UND GELTUNG [BETWEEN FACTS AND NORMS] 312 (5th ed., Suhrkamp 1997);
ANDR-JEAN ARNAUD, POUR UNE PENSE JURIDIQUE EUROPENNE [TOWARD A EUROPEAN LEGAL THOUGHT] 23
(PUF 1991). For a good overview, see also GOTTLIEB BRUNNER, GRUNDWERTE ALS FUNDAMENT DER PLURALISTISCHEN GESELLSCHAFT [BASIC VALUES AS THE FOUNDATION OF A PLURALISTIC SOCIETY] 109ff. (Herder
1989).
56
Art. I-2: These values are common to the Member States in a [i.e., a single] society . . .
(emphasis added).
57
See Armin von Bogdandy, The European Union as a human rights organization? Human rights and
the core of the European Union, 37 COMMON MKT. L. REV. 1307, 1317 (2000).
A. von Bogdandy
309
310
French text, however, democracy is formulated as majority rule, which immediately aroused concern among the smaller states.60 Justifying their concern,
German foreign minister Joschka Fischer, shortly after the finalization of the
document, urged his Finnish counterpart not to raise any objections to the text
of the draft constitutional treaty. By deleting the passage, the IGC avoided
substantial pitfalls.
The constitutional treaty contains a hypertrophy of values: respect for
human dignity, liberty, democracy, equality, the rule of law and respect for
human rights, as well as pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men in article I-2. The draft constitutional treaty went so far as to include equality of persons, freedom,
respect for reason in the preambles first recital, although it has been replaced
with a more concise formula. Even so, the declaration of values seems rather
diffuse and powerless. No manifesto, for which Europe stands, is discernible.
The spirit, the will, and the quill, so to speak, fall short of what is needed to
formulate a suitable and persuasive statement. Equally weak is the Union
motto: United in diversity.61 It hardly affords any further ground for common identification, especially since it describes the Union as an end in itself,
instead of connecting with the ethical convictions of Union citizens. In the
entire document, there is no formulation that might be a credible maxim to
adorn building entrances or frontispieces in books and passports.
2.2.4. Who we are noton anti-Americanism
This reference is credited with thanks to participants in a seminar with Prof. Martti
Koskenniemi in Helsinki in August 2003.
61
62
63
CARL SCHMITT, DER BEGRIFF DES POLITISCHEN [THE CONCEPT OF THE POLITICAL] 26f., 29f., 50ff. (6th ed.,
Duncker & Humblot 1996).
A. von Bogdandy
311
into primary law. The constitutional treaty attempts to substantiate the uniqueness of Europeans among the wider world (art. I-3, para. 4; or, more conspicuously in the French text of the draft CT; le reste du monde). Exceptional
among the other regions of the world at large, Europe self-pleasingly distinguishes itself as a special area of human hope (fourth recital).
Yet the United States also claims this privilege, and in a way that Europeans
can hardly ignore. Thus, all elements by which the constitutional treaty seeks
to establish Europeans as extraordinary refer inevitably (though not explicitly)
to the United States. The constitutional treaty affirms the notion that Europe
can find its identity only in delimitation from, perhaps even by standing
against, the U.S.64 The delimitation arises, on the one hand, from the European
social model. The second recital finds Europe striving for the good of all its
inhabitants, including the weakest and most deprived. The last six words are
the most telling. Building thereon, article I-3, paragraph 3, subparagraph 2
establishes, as an objective, social justice and protection, not justice alone as in
the U.S. Constitution. On the other hand, delimitation arises also from the positioning in relation to international law. [The Union] shall contribute . . . to
strict observance and to development of international law, including respect
for the principles of the United Nations Charter (art. I-3, para. 4); this commitment is significant, particularly in the wake of disputes over the
International Criminal Court, the Kyoto Protocol, and the war in Iraq. It is difficult to interpret it as anything but an act of differentiation vis--vis the
United States.
There is danger in this path. These elements might be used to foster an antiAmerican self-image among Europeans. The currently prevalent self-perception
of a common Western world might be weakened by attempts to realize the
multipolar world dear to France, Russia, and China, in particular. Not only
would this be threatening to international stability; it is also quite possible that
systematic antagonism toward the United States would divide rather than
unite the Union.65 The IGC attenuated these features. The first recital of the
preamble now refers to universal values that form the basis of the ungeographical West that includes most of Europe and the United States. By deleting
the initial quotation from Thucydides, the Europeans also avoid the impression
of claiming an exclusive right to the heritage of Greece, which might have
caused substantial irritation in the Atlantic relationship.66
Yet the need for distinguishability remains. From the perspective of identity
formation, much will depend on the operation of title V of part III on the Unions
External Action. A European identity will be substantially strengthened if the
new procedures present Europeans as a group that acts with respect to other
64
Cf. Claus Koch, Europanur gegen das amerikanische Imperium [EuropeSolely to counter American
empire], MERKUR, SONDERHEFT EUROPA UND AMERIKA 617/618, 980ff. (2003).
65
Christoph Bertram, Strke und Schwche [Strength and weakness], MERKUR 647, 200, 206 (2003).
66
312
political communities. This has always been a core element of what Eurospeak
considered European identity.67 In this regard, the constitutional treaty
defines European identity: whereas article 2 of the EU treaty requires the Union
to assert its identity internationally, article I-3, paragraph 4 CT, which takes its
place, requires the Union to uphold and promote its values and interests.
2.3. Political institutions and political participation
68
Cf. GNTER FRANKENBERG, DIE VERFASSUNG DER REPUBLIK [THE CONSTITUTION OF THE REPUBLIC], especially
32ff., 133ff., 213ff. (Suhrkamp 1997); Gnter Frankenberg, Tocquevilles Frage. Zur Rolle der
Verfassung im Proze der Integration [De Tocquevilles Question: The role of the Constitution in the integration process], in Schuppert & Bumke, supra note *, at 31, 44ff. Also impressive in this line of
thought is SIEDENTOP, supra note *, at 25ff.
69
Klaus von Beyme, Die Entstehung des Ministerprsidentenamtes in den parlamentarischen Systemen
Europas [The emergence of the office of prime minister in European parliamentary systems], 10 PVS
249ff. (1969); KLAUS VON BEYME, DIE PARLAMENTARISCHEN REGIERUNGSSYSTEME IN EUROPA [EUROPEAN
PARLIAMENTARY SYSTEMS OF GOVERNMENT] 589ff. (Piper 1970); ARMIN VON BOGDANDY, GUBERNATIVE
RECHTSETZUNG [GOVERNMENTAL LAW MAKING] 129f. (2000).
A. von Bogdandy
313
There is, however, a chance that this deficit will be addressed, at least in terms of legal responsibility. In a proposal, dated 6 October 2003, the Italian Council Presidency suggested that art.
III-270, para. 1 allow for a basic appealability of acts of the European Council, available at
http://ue.eu.int/igcpdf/en/03/cg00/cg00004.en03.pdf.
71
Also in this respect, the IGC improves substantially the Conventions proposal, as now an action
under art. III-270, para. 1 CT might be brought against the European Council if an act is
intended to produce legal effects vis--vis third parties.
72
For an attempt to bring these most diverse provisions in one conceptual framework, see
Anne Peters, European democracy after the 2003 Convention, COMMON MKT. L. REV. 41, 37 (2004).
73
Some elements, which arguably might foster identity, were not introduced; the most often discussed omission is a reference to God; on this, see JOSEPH H.H. WEILER, EIN CHRISTLICHES EUROPA
[CHRISTIAN EUROPE] (Anton Pustet 2004). Yet, as pointed out, the flag carries a powerful religious
message.
314
The text of itself has only limited potential for forging identity. A legally
binding document is but a first step on the long and winding road from a
political design for collective identity to a socially embedded institution that
actually fosters such identity. A further step would be the stable grounding of
the constitutional treaty in public discourse across the political community.
This could be achieved on a ceremonial level through presentation of the
European constitution as a symbol of European unity; political rhetoric might
have this strategy in mind. The citizenry, however, reacts skeptically to political rhetoric, at least to that of the established political parties. A truly effective
grounding, then, may depend primarily on the efficacy of the constitution as a
paramount normative point of reference in political and social debates.
Whether this will be achieved is an open question. The preambular principles, after all, cannot easily be operationalized in legal controversies. The
success of Germanys Basic Law in this respect rests, to a great extent, on two
phenomena: first, the political practice of conducting important disputes as
debates over constitutionality and, second, the development of the German
legal order since 1950 that has placed the constitution at its very center.74
Whether the Union will develop similarly is debatable, especially since
the development of Germanys legal order has been a response largely to the
National Socialist dictatorship.
It is also by no means certain that Europes constitutional treaty would credibly establish a paramount normativity, which is indispensable to a credible entry
in our dictionary of European identity.75 Making the European Council the highest institution will hardly benefit an awareness of paramount normativity: like
the German monarchs of the nineteenth century, the Council is largely beyond
European legal and political checks and, consequently, could operate without
sanctionable obligation to constitutional law.76 Perhaps even more important,
though, is the handling of the Maastricht-deficit criterion of 3 percent for
national budgets. If, as foreseen in article III-76, paragraph 2, this criterion
becomes formalized in constitutional law,77 and if this dutywhich is invested
74
MICHAEL STOLLEIS, GESCHICHTE DES FFENTLICHEN RECHTS IN DEUTSCHLAND [HISTORY OF GERMAN PUBLIC
LAW], 102ff. (Beck 1999); see also HEINRICH ALBET ZACHARI, 1 DEUTSCHES STAATS- UND BUNDESRECHT
[GERMAN STATE AND FEDERAL LAW] 75f., 290 (1853). But cf. the promising development discussed
supra note *.
77
Compare the stability criteria, presently grounded in primary law in art. 104 EC in connection
with Protocol 20 to the EC Treaty on the excessive deficit procedure. Detailed rules and definitions
315
A. von Bogdandy
for the application of this protocol were laid down in Regulation (EC) 3605/93 of the Council of
22 November 1993 (1993 O.J. (L) 7). On the binding Stability Pact, see European Council
Resolution on the Stability and Growth Pact of Amsterdam of 17 June 1997 (1997 O.J. (C 236) 3).
78
The most important judgment in this regard is C-27/04, Commission v. Council, handed down
13 July 2004, on excessive government deficits.
79
CONSTITUCIONAL
This, according to a Kantian dictum, stating that even devils could found a state, if they have
reason. See IMMANUEL KANT, PERPETUAL PEACE (1795); see also IMMANUEL KANT, Die Religion innerhalb
der Grenzen der blossen Vernunft [Religion in the confines of reason], 7 WERKE IN ZEHN BNDEN 751ff.,
753 (Weischedel Edition 1968); on Kants continued relevance, see Peter Niesen, Volk-von-TeufelnRepublikanismus, in FS HABERMAS 568 (2001).