Research program
The Draft Constitutional Treaty, the Eu Charter of Fundamental Rights and the privat autonomy.
University Co-ordinator
Universita' degli Studi di ROMA -
DIRITTO DELL'ECONOMIA - ROMA(RM)
Research Unit Leader
Vincenzo ATRIPALDI
Description
At the European Council of Laeken held on December 15, 2001 a process of a new EU institutional foundation was launched, that was called to face new challenges in the view of a major political, economic and social integration, regarding an increasing of democracy, transparency and efficiency of the EU decision-making system. The aim of a great and sharp reform of EU institutions and EU voting procedures has been established. This gave the start to a real constitutional process at the European level which, on its behalf, place the foundations of the new "european constitutionalism". The main aim of the research is that of searching and focus this constitutional experience in the making in Europe, both on the level of the rules issued and on the level of the constitutional theoretical views. The most interesting and new feature of the on going constitutional process took its origin from the need to launch a new approach of the Jean Monnet "gradualist method" that, nonetheless allowed the extraordinary development of the European integration, has showed undeniable limits, forcing to get t a separate consideration of the different constitutional subject, in particular of those concerning fundamental rights and the system of government. Therefore the need to launch a new approach that, being the consequence of an union of States and of peoples, has got both national and super-national character and allows to develop, in a global view, all the issues related to the political-institutional order of Europe. Moreover, it urgent the need to guarantee a bigger representation and transparency of the reform' process, in order to encourage the citizens to be closer to the EU and to trust more the EU institutions, caused by the complexity of decision making process. The lack of legitimation of the latter does not only depend on the distance between the citizen and the centre of the power, but also on the lack of identity and of a division of competences that does not permit to understand clearly whether a task is that of the legislature or that of the national or EU executives. The Declaration on the future of the Union, attached to the Treaty o Nice, has been the starting point of the reflections on the institutional order of the EU: With the later document Heads of State and Government of the fifteen member States promoted a debate on the future legal order of Europe, involving, in an interactive process, institutions, economic, political, academics environment and civil society. Therefore, it was clear, from the debate, that the main issues that were to be faced in order to guarantee and to improve constantly the democratic legitimacy and the transparency of the decision making process, were: 1) the division of competences between EU and member States, 2) the simplification of the Treaties, 3) the role of national Parliaments in the EU, 4) the status of the EU Charter of fundamental rights. One of the main subjects of the research will be on the s.c. "method" of drafting of the Constitutional Treaty. The organism charged to draft the European Constitution has been a Convention similar to that one which drafted the EU Charter, within which the citizens were represented both by the member of the national Parliaments and by supra-national institutions. The European Convention did not have only the difficult task of drafting the constitutional Treaty, but also that one to confirm the validity of a procedure already used for the Charter. It was clear the attempt to find a satisfactory answer to the democratic deficit and to the EU legitimating of power. The "method" of working was adopted in order to achieve the higher level of transparency and, most of all, the higher degree of participation also of non institutional agents that were suppose to express the voice of the civil society. Also relevant it was the adoption of a new method of working through "consent" that, contrary to the classic parliamentary work, does not imply voting procedures, neither on the amendments presented by the member of the Convention, neither on the draft articles presented. Considering the positive results of the Charter experience, the national executives decided to adopt the same method to realize a major reform's process of the EU legal order. From the confrontation of the two experiences meaningful differences can be derived on the two Conventions. First of all, the EU Charter Convention received a rigid and binding madate; the Constitution Convention received, on the contrary, an open mandate with the obligation however, of deliver proposals on the EU order in the view of the coming IC, verifying in the meantime, whether it was possible to simplify and to restructure the Treaties with a European Constitution. Secondly, differently from the Charter Convention, the Laeken Declaration implied a bigger composition of the Convention extended to the candidates member States and t was given a considerable weight to the national components in respect to the European ones. Finally, in the case of thye Charter Convention, the European Council designed the structure of the debates and the decision making procedures, whereas the Constitution Convention had no proceeding rules at all, that were defined by the Convention itself in a note on the method. On tthe content of the Constitutional Treaty the anallysis will be focused on the result of the works that was one of a compromising formula that, under the clear form of a Treaty, has the content of a European Constitution, that is the expression of a Europe founded on a double legitimation, on on e side of the member Stets, that remain formally the constituent subjecte, on the other side, of the citizens, that are the DESTINATARI of the Treaties' provisions. Due to the double legitimation of the cosntitutional process of the EU, the draft of the Convention acquired the characteristic of a "multilevel Constitution", from which the power tend to put itself both orizontally (local entities – central State) and vertically (States – EU institutions), is still viewable. In other words it is a multilevel Constitution that find its reasons of being, on on ehand, in the EU tratiesand, on the other hand, in the member States Constitutions. In general, one of the aim of the research is that the draft Constitution, even though it requires a systematic interpretation of the various sources of la w on which is founded, is in any case a Constitutiona in a substantial sense. The drafting of the Constitutiona Treaty was a transcription of the common constitutional traditions of the meber States reduciong in a unity principles and provisions that are in the various EU Treaties. On the other hand, it is difficult to qualifie the latter as a Constitution in a formal sense, not only because of this varity of acts, but mainly due to the fact thet they includes fundamental norms and also provision witha general character.
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