Legal challenges and historic opportunities for a European constitution

, by Lasse Ramson

Legal challenges and historic opportunities for a European constitution
European federalists marching in Rome in 2017. Photograph:

In recent months, the debate on a European constitutional process has once again accelerated. Martin Schulz, then-leader of the German Social Democrats (SPD), not long ago called for a European state and constitution by 2025 not long ago. In doing so, he not only initiated an exchange of claims for the upcoming coalition with the Union parties led by Chancellor Angela Merkel, but also gave a distinct — and long-demanded — answer to French president Emmanuel Macron’s last September vision speech. This article discusses the historic opportunities of a well-designed drafting process for a European constitution after briefly outlining legal obstacles.

Legal challenges

While the demand for the renewal of a constitutional order with over 500 million citizens and over 20 official languages within 8 years already seems challenging enough, there are some legal obstacles in the existing constitutions of the member states themselves. For example, the German constitution states in the Ewigkeitsklausel of its article 79 para 3 that some changes to the constitution cannot be made, not even with a constitutional parliamentary majority. As the Federal Constitutional Court clarified in its 2009 judgement regarding the Treaty of Lisbon, one of these “eternal” provisions is the sovereignty of the Federal Republic of Germany. Therefore, German citizens could only join a unified European nation by freely adopting a new constitution which would replace the Basic Law, as it states in its article 146. A referendum as a condition for that seems logical.

Of course Germany isn’t the only example; you will be able to find similar constructions — be they written or unwritten — in other European constitutions, not to forget about the many states where every constitutional change needs an approval by its citizens.

Historic opportunities

Here, however, lies the historic opportunity for a European constitution: because of national provisions, it ought to be a constitution by the people, not by the states. If this fundamental premise is taken seriously, a constitutional convention would have to be installed by an election all over Europe under the same rules.

Sceptics might object at this point that such a constitutional convention already failed once in 2004 during the European Constitutional Treaty design process and that Euroscepticism has not declined since then. While this is true in itself, two adjustments should be noted: First of all, the 2004 constitutional process did not fail because it was not meant to be, but also because the convention was neither directly democratically legitimated by the citizens nor was the output of it (emotionally) admirable. The Treaty was a monstrous work of bureaucracy, exceeding every other constitutional text in length. Furthermore, scepticism towards the EU stems from its current condition, which still suffers from a lack of democracy, a perception of excessive bureaucracy, and a lack of emotional connection to the European project. This does not necessarily mean that there is also a general scepticism towards European integration.

Mistakes are to be learned from. They lead to conclusions regarding the design of a process for, and the goal of the design of a draft European constitution. Last things first: The goal of such a process is a draft of a constitution, i.e. a foundation of the legal system of a new state by its future citizens, not an international treaty between states. Also, it only needs to deal with fundamental questions regardings fundamental rights and organisation of the state. It does not need to give the answer to all questions, but rather a foundation on which an order can be built. Or, to put it briefly: It should be kept as simple as possible and as extensive as necessary.

The design process of course faces some serious challenges as well: How can so many different linguistic regions and (legal) cultures be equally represented in the process? There is no obvious answer to this, but a glance towards working multilingual state processes in Europe can be enlightening. Switzerland, for example, operates with a high level of subsidiarity and regionalisation to secure that the different linguistic and cultural regions can govern themselves with regard to local questions.

If this is concept is applied to a constitutional process properly, the regional cultures are respected and domination by the bigger communities is avoided a priori. A way to design a constitution in a regional way could be regionalised convents, where the citizens are able to discuss in their own language and compile some fundamental conceptual points. These points could later be brought into a pan-European convention, where the preliminaries are accumulated into a constitutional draft which would afterwards have to be approved in a European plebiscite.


This does not solve all open questions, especially regarding the role of the member states of the EU in the process or how to set the quora for decisions. This article merely wants to outline some necessary preliminary considerations and share some ideas on how to deal with them. Its author is convinced that the next years will be essential for the future development of Europe — either towards more unity or (back) into a fragmented continent. Hereby, the discussion shall be stimulated a little.

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