Resumen de The Constitutional Significance of the Charter of Fundamental Rights

Antje Wiener

• I. Introduction [1] While constitutionalism appears to be a new buzzword in political, public and analytical Eurospeak, it is never quite clear whether there are any shared terms of reference in this debate in "Europe," let alone on a worldwide scale. To sort out the different approaches and their analytical strengths and weaknesses, this article offers an overview of analytical choices that are likely to determine the type and outcome of discussions about the constitutional significance of the European Union's Charter of Fundamental Rights (hereafter: the Charter). (2) It juxtaposes the seemingly paradoxical parallel development of a widespread use of "constitutionalism," and increasingly "constitutionalization," on the one hand, and the theoretical and political divergence in its application, on the other.

  [2] The article begins with the core observation that even exclusive understandings about the role and meaning of a constitution exist in the multi-constitutional context that is the wider Europe. In other words, a significant divergence about constitutional issues can be observed. This divergence stands in odd contrast with the current upsurge in constitutional discourse pushed by strategic efforts of European institutions in Brussels as well as, if to a lesser and more contested extent, in the Member States. Indeed, in terms of purely discursive frequency, a convergence in reference to all things constitutional can be seen. The seemingly paradoxical development of divergent understandings, though converging on the term as such in its daily usage, cautions against fast, let alone, forced constitutionalization akin to previous nation-state experiences. (3) [3] If understandings about the meaning of constitutional issues including role and function, type and structure, let alone, principles and norms of constitutions in nation-states polities differ considerably, what does this imply for the success of constitutional politics beyond the nation-state, i.e. with reference to European constitution-making? This article suggests that the choice of analytical approaches comes down to applying two mutually exclusive approaches, dubbed as the pathos vs. process models of constitution-making. The success of each model depends on the choice of analytical framework that situates the model within contexts of "efficient" or "inefficient" history. (4) It is argued that mapping approaches to constitutionalism in this way, not only allows for an allocation of policy choices, given that policy substance and agenda-setting are in general informed and influenced by precisely these analytical choices of academic policy advisers, but .

  [4] This article is organized in four sections. The first section discusses the analytical steps towards mapping an analytical framework of constitutionalism. The second section develops a chart of distinctive approaches to constitution-making based on pathos or process models that are identified as two significantly divergent perceptions of constitution-making, as well as on the choice between "efficient" and "inefficient" perceptions of history. (5) The third section applies this model to the approaches to constitutional policy taken by two of the European Union's political organs (the European Council and the European Commission). Turning to constitutional policy in 'Brussels,' the fourth section suggests that the Charter's significance for European constitution-making depends on its promoters' success in offering and conducting an inclusive public debate over its substance. While this may appear to be a commonplace truism (indeed, much of the recentconstitutional discourse across Europe would suggest that such a conclusion is an obvious and relatively straight forward recipe for success, justifying the reliance upon the convention model, public hearings, and the mobilisation towards a referendum on a 'European' constitution) the devil, as they say, lies in the details. This article intends to elaborate on those details.

  II. What and Where: Constitutional Significance in Context [5] In order to assess the constitutional significance of the Charter, it is first necessary to identify a political frame of reference. In other words, what is the focus of analysis: "beast" or "cage" or something else? For example, the European Union has long been addressed by applying the metaphor of a "beast," (6) suggesting that the EU is one actor. This terminology is misleading in so far as the reference point of most analyses is that of a political container, more precisely described by using the metaphor of a "cage." (7) With a few notable exceptions, the EU's behavior is usually discussed in relation to the concept of a polity that bears, in one way or another, a resemblance to modern nation-states. Political scientists' and German lawyers' perspectives on the EU have been particularly "caged-in," so to speak, despite remarkable efforts to bring in interdisciplinary wisdom from sociology, international and European law, or, indeed the theory of international relations.

  [6] This article also seeks to incorporate some of these approaches, in particular: (a) studies that address processes of constitutionalization in world politics; and (b) analyses of the political culture of constitutionalism in a comparative perspective. With reference to the zoological metaphors, it is argued that, the "post-Nice" debate about European constitutionalism suggests indeed, that the animal's behavior might be a key in exploring the constitutional significance of the Charter in two ways. The first important aspect of this shift involves the move from a statist frame-of-reference towards a mode-of-interaction as a theoretical window of opportunity to avoid statism. The second important aspect lies in the empirical focus on interaction which offers an access point for answering the question whether or not a "cage" is desired at all, and if so, which model. These considerations are not to be underestimated as the Europolity's character as simultaneously "anti-state" and "near-state" has proven difficult to address with traditional concepts, tools, and assumptions. Thus, while most would agree that the EU is neither a state nor is it likely to become one at any point in the future, few have managed to avoid the traps of "methodological nationalism." (8) [7] According to a rough distinction among three different views on politics and policy making that is of constitutional relevance for the EU, three different contexts are of potential importance for an assessment of the Charter's constitutional significance.

  [8] Integration Constitutional significance may be analyzed as part of the integration process that seeks to explain institution building on the supra-national level. This approach would follow early theoretical debates over how to best explain some level of integration based on institutional arrangements established outside the state (the neo-functionalism vs. inter-governmentalism debate in the 1960s and 1970s). The significance of the Charter would therefore be measured in terms of its contribution to some level of integration on the supra-state level.

  [9] Institutional Adaptation Secondly, it may be understood as institutional adaptation in the EU member states and candidate states. Depending on institutional compatibility or incompatibility with supra-national conditions, national institutions are seen to adapt towards better fit. According to the institutional adaptation approach then, the Charter's significance would be measured in terms of whether or not the Charter would put states under pressure to adapt their respective constitutional settings accordingly. (Since, as it stands, the Charter is explicitly deemed a non-reference point for the ECJ, it is unlikely to play a key role in processes of institutional adaptation within member states in the near future.).

  [10] Constitutionalization Finally, discussions of the constitutional relevance of the Charter may be assessed within a larger context of assessing the role of social context and legal rules and procedures with respect to constitutionalization. Here, comparative approaches of transnational interaction within a narrower European as well as within a larger, global political frame-of-reference are possible. Studies would compare the Charter's emergence from and impact on processes of constitutionalization with a view to the "civilization" of world politics. (9) As such, this process is not unique to the EU context. Indeed, public mobilization, for example, on issues of constitutionalization within the framework of the World Trade Organization, have stirred much more public interest, than the EU's half-articulated process of constitutionalization. (10) [11] As the Max Planck Institute for Comparative and International Law observes:

  ?A?t the international and regional level, the states have increasingly moved beyond mere cooperation in matters of security, human rights protection, trade and the environment and established multilateral mechanisms which in their normative dimensions as well as their institutional ramifications present certain constitutional characteristics. This process of constitutionalization has been particularly strong in the European context with the foundation and the dynamic institutional development of the European Communities as well as with the establishment of a highly effective system for human rights protection under the auspices of the European Council which now covers the whole of Europe. (11) As this assessment rightly stresses, European and world political processes are inexorably linked. Indeed, the Charter brings together a conglomerate of rights which have been derived from different institutional contexts in world politics. If both processes bear an imprint on the substance of the Charter, the reverse can be expected as well, that is, the Charter or discussions about the Charter are likely to produce changes of constitutionalization in both the European and world political arenas.

  III. Constitutional Moment or Process? [12] This section turns to defining the role and meaning of constitution-making based on the analytical conception of a constitutional moment, a constitutional process, or a process of constitutionalization. It discusses the implications of conceptual choices taking a constitutionalist approach in the sense suggested by Joseph Weiler. (12) That is, constitutionalism is applied as a theoretical tool which allows us to focus on constitutional issues from an academic perspective. Thus it is possible to distinguish among different perceptions of constitution-making. For example, if constitutions are viewed as a "deliberate act of political foundation which not only aims at the creation of a legal order but which is itself already a legal act�the exercise of the constituent power," (13) then the significance of the Charter will be assessed as part of such a constitutional moment and its future implications, using the experience of national states as a comparative point-of-reference. In turn, if a constitution is defined as "not static and bound to the state, but dynamic ?...? as a process of step-by-step constitution of legitimate ?...? sovereign power," (14) then the Charter's impact would be evaluated according to its part in the process of constitution-making.

  [13] Alternatively, and different from the first two approaches (both of which define the constitution at a point in time which either precedes or follows a constitutional moment in order to define the limits of sovereign power and enables just rule within a particular context), a third view of the constitution as a process itself, is more open ended. Thus, the definition of the Canadian constitution as "a 'living instrument of government,' always wider in scope than the terms of the British North America Act, 1867, and not restricted to the intentions of the Fathers of the Canadian Confederation. ?....? the settlement of 1867 was only the beginning, and has been under constant transformation since that time," (15) does not perceive the constitution as a single fixed-point. Instead, it remains a process of continuous-becoming. It can thus be viewed as an evolving constitution. (16) [14] What does such a perception of constitution-making imply? Would it be an option for Europe and if so, what would be the constitutional significance of the Charter of Fundamental Rights? The following elaborates on these questions based on analytical choices and the subsequent elaboration of available types of action which are related to each. It is argued that analytical scrutiny along the pathos and process model respectively demonstrates that, what is often presented as a process approach, turns out to be working with the underlying reference to a constitution as fixed-point. To address the issue of constitutional significance of the Charter, it is important to make explicit the perception of the constitution in context, i.e. to state whether the constitution is seen as a process in itself, or, alternatively, as a point in time which either precedes or follows process.

  1. Constitutions as Fixed-points [15] Two pathos models can be distinguished according to their respective grounding in the assumption of history as being efficient or inefficient. This helpful distinction about the belief in historical efficiency has been put forward by March and Olson's study on political orders as sets of institutional arrangements. According to this approach to the belief in efficient or inefficient history, the positions are distinguished as follows: "On the one side are those who see history as following a course that leads inexorably and relatively quickly to a unique equilibrium dictated by exogenous determined interests and resources. On the other side are those who see history as inefficient, as following a meandering path affected by multiple equilibria and endogenous transformations of interests and resources." (17) [16] A constitution's role according to the belief in efficient history would be assessed according to its place within a context of a path-dependent constitutional trajectory, including specific types of policy and institutional arrangements. The significance of the Charter would thus be gleaned from historical experience and assumed to be structured by the institutional and cultural context. The approach that deems history as inefficient and hence subject to being shaped by strategic policy or political intervention, would stress the symbolic power of constitutions, either in principle, or speaking from historical experience. Different from the first pathos model, it assumes that history can and should be formed by actors. In other words, strategic intervention with a particular goal is possible. According to this model, a constitution may either generate debate or a deliberative process, which precedes the solemn passing of a constitution. Both views entail a, if only implicitly stated, key role for a constitutional moment. The Charter's significance would hence be seen primarily as stimulating public debate. Its role can be summarized as follows: "Notwithstanding that ?the Charter? is for now passed as a programmatic declaration only, it will adopt a leading and orientating function with an impact that reaches far beyond previously passed declarations by the European institutions, to be sure." (18) 2. Process: Constitutionalization [17] Public discourse communicated through the media and political debates, entails few explicit references to a European constitution. However, constitutionalization understood as the process which contributes to converting institutions such as beliefs, ideas and procedures into a system of legally entrenched and hence enforceable rules and norms has nonetheless proceeded steadily. All of the following have played a substantial part in the evolving norms and practices of European constitutionalism: (a) integration through law including the firm establishment of primary and secondary law in the European Community (EC) and now EU member states, (b) integration through policy implementing and regulating EC law, and (c) integration through politics, debating and establishing new principles and new political substance to the acquis communautaire, e.g. subsidiarity, flexibility, citizenship, the communitarization of Schengen. Since the 'relaunch' of European integration with the Single European Act in 1987, students of European integration have preferred to address the processes of institution building or adaptation within the sui generis model of the European polity, or, if rejecting that approach for analytical reasons, resorted to comparative politics or comparative policy studies. Lawyers, and more recently comparativists, who have carefully monitored the hidden process of integration through law have found that "constitutionalization" (19) was well under way for some time in the EU, defining it as "?T?he process by which the EC treaties evolved from a set of legal arrangements binding upon sovereign states, into a vertically integrated legal regime conferring judicially enforceable rights and obligations on all legal persons and entities, public and private, within the sphere of application of EC law." (20) [18] Elsewhere, lawyers and scholars in the field of international relations have often, on the same time-axis, begun to collaborate in studying the impact of international institutions, often with a focus on trade and rights, in particular, human rights. Such studies pursued questions of compliance with rules that were established within the anarchic context of the world system of states, loosely connected by sets of institutions which often emerged first in specific issue-areas. Compliance was found to be pushed by power, interest, shaming or commitment. (21) Different types of actions that lead to compliance have been discussed, including the neo-realist stress on cooperation and the liberal focus on the key role of bargaining fathomed by cooperation and collaboration approaches. Constructivists have pointed out that interactive processes such as communication, learning and arguing play a key role towards explaining compliance, thus stressing international interaction among states and, increasingly, transnational interaction among non-state actors. (22) As a result, processes of legalization and legal bureaucratization in world politics have been brought to the fore. (23) More recently, transnational interaction has contributed to an emerging, if still not sufficiently specified, academic focus on processes of "constitutionalization" beyond the state. (24) [19] At this stage it is possible to summarize that, as a process, constitutionalization involves turning institutions such as beliefs, ideas and procedures into a system of legally entrenched and hence enforceable rules and norms. From an academic perspective, it allows a focus on evolving constitutional norms including their social context of emergence, their legal value, and their political power. According to the pathos vs. process approach, the Charter's significance is potentially twofold within the context of European integration (more or less Europe). Figure 1 maps the possible analytical choices towards finding an answer to the article's leading question of what is the constitutional significance of the Charter? Figure 1: Ontological Standpoints and Significance of Charter