Following the dramatic No votes in the French and Dutch referendums on 29 May and 1 June 2005, a need was felt in the European constitutional law profession to react to the shock.

EuConst invited members of its Board and members of the European Constitutional Law Network to write a short comment about possible and possibly salutary effects of the events on the ways of European scholarship and teaching. Below are the reactions received. Authors are all members of ECLN and/or the Board of EuConst.

The contributions to this issue of EuConst by Jacques Ziller, Sacha Prechal and Herman van Gunsteren carry their comments on the events incorporated.

Triple majority for changing the status quo in Treaty of Nice (2001): qualified majority of weighted votes, majority of countries, qualified majority of the population. Convention proposal (2003): requirements from three to two by dropping the qualified majority of weighted votes and reducing the qualified majority threshold of the population from 62% to 60%. Important consequences for the political institutions of the Union: 1) facilitates political decision-making; 2) reduces relative weight of governments participating in the Council and increases the importance of the European Parliament; 3) reduces the role of the judiciary and bureaucracies in the Union in favor of the political process. Consequences of the Treaty establishing a Constitution for Europe signed in Rome 29 October 2004. Exactly in the middle between Nice and the European Convention.

Appointment of European Commission and German Constitution. Influence EPP's electoral victory and German internal politics on Barroso's appointment. Socialist Verheugen accepted by rightwing German politicians. Role of national politicians and German MEPs in Buttiglione crisis.

In a text which claims constitutional rank the principle of citizenship, in all meanings of the term, is fundamental. If a treaty has as its first reference the State, a constitution naturally has as a reference also the citizen. Indeed in the European Constitution provisions abound referring to the citizen. In Part I they are to be found in Titles II and VI; in Part II there is the whole Title V and in Part III there is Title II. As citizenship is everywhere in the Draft, this would deserve it the rank of Constitution that it claims.

This first impression, however, is not supported by reading the different actual provisions in the Draft Constitution concerning citizenship. They fall short on three grounds.

Dutch debate on choice of candidate for European Commission. Criticism EP on Neelie Smit Kroes's candidacy. Dutch incapacity to find a solution. National inter-party struggles and impact on European affairs.

The European Council's personal, elected and mandated presidency is without a doubt one of the major innovations in the Constitution. It is also its most fought over and precarious novelty. Until the last stages of the Convention, the great majority of small Member States' representatives maintained staunch opposition against the idea. In the end, however, they all reluctantly dropped resistance in the face of the praesidium's intransigence, supported by the major Member States. With its new chairman, the European Council can be considered the great winner among the Union institutions. Apart from becoming a full European institution (Article I-18), it is getting structured leadership. Article I-21 of the Draft European Constitution states that the European President is to be elected by the European Council, by a qualified majority for a term of two and a half years, and cannot serve more than two terms. The President may not hold a national mandate. In order to understand this new function, one needs to look into its origin, powers, strengths and weaknesses.

Precedents in European Union member states for the negative referenda in France and The Netherlands on the Constitution for Europe. Evolution of the investiture of the Commission: parallel with France under Third and Fourth Republic. Double headed executive (President of the European Council and President of the Commission) and ‘double hats’ (Union Minister for Foreign Affairs) in line of the European constitutional tradition. The unborn ‘Legislative Council’ and its Austrian and German counterparts. The aborted ‘Congress of the Peoples of Europe’: forum for ‘State of the Union’ speech, not a electoral body. Protection of minority rights in the Constitution for Europe due to insistence of the Hungarian government; foreign to the dominant Western constitutional concepts. Representative democracy and the formal concept of law: European Laws and Framework Laws as ‘Acts of Parliament’. Strict limits on the possibility to delegate legislation: German, Italian, French roots. European Laws and Regulations: unachieved hierarchy and French precedent. Judiciary as a relative minor branch of government as in the British and French traditions. No German Verfassungsbeschwerde or Spanish recurso de amparo, but probably more annulment procedures and preliminary questions on legality and constitutionality than before. Parallels with German federal concepts: Union Law über Alles; no rigid Kompetenzkatolog and joint competences; distribution of competences not limited to law-making. More than lip service to decentralisation. Constitutional ping-pong and intertwined constitutionalism: territories d'outre- mer and outermost regions.

EC-directive, unique nature. Questions and debate. Irremovable from EC law. Change of name and context in Constitution. Concept of law. Opportunities missed. Evolution to continue.

Collective involvement of member states. Law and practice of nominating the European Commission president and his team. The responsibility to resolve the political conflict and the failure of the Dutch Council presidency. The European Council providing the political authority necessary for a solution.

The inter-institutional balance of power within the EU is central to the new constitutional order. It is not therefore surprising that this topic, which is dealt with in Title IV of Part 1 of the Constitution, was contentious. This was evident in the process employed at the Convention. The Convention's general three-stage methodology of listening, examination, and proposal was not applied to the deliberations about institutions. There was no Working Group. The Convention discussions about institutions only began formally in January 2003. The Praesidium submitted its proposals to the Convention in April 2003. Full discussion of the draft articles concerned with institutions only occurred in the plenary session on 15-16 May 2003. There was no second reading in plenary about these articles. The Praesidium opted instead for consultations with the four constituent groups, governments, MEPs, National MPs, and the Commission, which took place on 4 June 2003. Formal text of the revised articles on the institutions only became available on 10 June, a mere three days before the concluding session on 13 June.

This short piece cannot deal in detail with the many issues concerning the institutional provisions of the Constitutional Treaty. It is designed to be a brief guide to the relevant issues

A powerful development by the European Constitution exists in the rationalisation of the instruments through which the Union may exercise the competences conferred upon it. This has constituted a particularly sensitive issue for the Convention. Under the EC and EU Treaties, the Union uses no less than 15 different instruments, some having the same appellation but entailing different legal effects, others being rarely used. This diversity has contributed to the development of an obscure patchwork of norms with ill-defined scope, legal effects and institutional origin. That situation consequently limits democratic control over governance at the European level.

In the case of Leyla Sahin v. Turkey of 29 June 2004, the European Court of Human Rights decided in favour of Turkey. The banning of headscarves at the University of Istanbul did not violate Article 9 of the European Convention on Human Rights (ECHR). Some years before the European Court already declared inadmissible a complaint by a Swiss teacher of younger children who was fired because she was not willing to leave off her headscarf while teaching. The complaint was manifestly ill founded. In other European countries the wearing of headscarves by teachers and pupils has lead to political and legal discussions and actions as well. In France, new legislation based on the so-called Stasi-report forbids pupils in primary and secondary state schools to wear clearly visible religious symbols. The reasons behind this act of parliament were problems allegedly caused by the wearing of headscarves. In Germany, the Federal Constitutional Court decided that a ban on headscarves for teachers needs a basis in an act of parliament of the German states. It is up to the legislatures of the Länder to decide if such a ban should be issued. In the Netherlands, existing equal treatment law has been interpreted in such a way that teachers and pupils in state schools are allowed to wear headscarves.

Area of freedom, security and justice. One of the most significant developments in European Integration. Assessment of the contribution of the Constitutional Treaty to further development. Formal abolition of pillar structure partially undermined by special provisions. Relevance of Charter of Fundamental Rights. Union powers strengthened, but likelihood of restrictive interpretation. Revised policy objectives: few new openings, but possibly important implications. Solidarity as a new integration principle. Is majority voting justified in particularly sensitive areas such as police and judicial co-operation in criminal matters? Monstrosity of the emergency-brake procedure. Strengthening of European Parliament and Court of Justice, but not overall. Perspective of enhanced co-operation.

The European Council actually, as a rule, takes decisions by consensus, as its major function is to bring a primary political impetus into the integration process through ‘conclusions’, ‘principles’, ‘guidelines’, and ‘joint strategies’ or ‘recommendations’ not having the force of a legal act. This is a customary rule; it is not stipulated in Article 4 EU. Consensus may be regarded as a ‘soft’ unanimity, reached without voting, in a silent way (no opposing statements), and allowing – within the framework of the common position – some divergences by individual Member States.

A wave of bans and restrictions on religious clothing is sweeping Europe. Schoolchildren, judges, jurors, civil servants, and employees are among the groups whose freedom to wear clothing which indicates their religion has been questioned, as has the right of governments, employers or schools to impose restrictions. The resulting debate has led to new laws or legal judgments in, among other countries, France, Germany, Denmark and the United Kingdom.

Notion of constitutional concept varies over time and space. Constitution for Europe as a further step in guaranteeing rights and separating powers. Amongst others French, Italian, German and Swedish national concepts in the Treaties of the European Communities and of the European Union. Several causes for difficult tracing of national concepts in the Constitution for Europe. Convention method: instead of by diplomats and EU experts, drafting by members of Parliament and (former) members of Government. More room for national concepts. The Intergovernmental Conference: the Empire strikes back, but with mixed impact. Parallels with other constitution making procedures. Concept of constitution: structure and size no argument for denying constitutional character; Constitution octroyée v. contrat social; Franco-American revolution v. British tradition.

Differences between parliamentary inviolability and parliamentary non-liability. Parliamentary inviolability in the Turkish constitution. Also for ministers. Scope and duration. Lifting of inviolability by the Grand National Assembly. Possibility of judicial review. Constitutional amendments to limit inviolability in the combat against corruption rejected.

After the attacks by Al-Qaeda on the World Trade Centre in New York and other sites on 11 September 2001, the UK Parliament enacted the Anti-terrorism, Crime and Security Act 2001 (ATCSA). Part 4 of the Act allowed the Home Secretary to certify a person as a suspected international terrorist if he reasonably believed that the person's presence in the UK was a threat to national security and reasonably suspected that he or she was an international terrorist. If the person was subject to UK immigration control (i.e., had no right of abode in the UK, not being a British national), he or she could be removed from the UK and detained pending removal under immigration legislation. If a practical consideration (such as the absence of transport links between UK and the place to which the person could be removed) or a point of law which wholly or partly related to an international agreement (for example, where removing a person to his or her country of origin would render him or her liable to torture contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)) prevented a person's removal or departure temporarily or indefinitely, the Act permitted their detention.

It is a popular misunderstanding that European citizens' lack of interest in the European Union has to do with the powers of the European Parliament. These powers have been constantly strengthened over the years, but that did not enhance voters' interest in European affairs. Even with the granting of European citizenship and the introduction of the euro, voters did not get interested, as the low turnout at the elections of members of the European Parliament on June 2004 (less than 45 %) attests. These elections even saw the rise of anti-European parties in several Member States, like the Independence Party (UKIP) in the United Kingdom. These elections, however, dealt more with national issues and the confidence in national governments than with European issues.

As it is obviously impossible for the modern ‘demos’ to assemble in order to take political decisions, democratic representation is an inevitable tool in large democracies. Representatives have to stand for and to act for the people as a whole. Accordingly, the principle of representative or parliamentary democracy is a fundamental constitutional principle shared by all the Member States of the Union. Democracy doubtlessly works on the national level; the Member States' decisional powers, however, are fading with the constant transfer of competences towards the European level. This leads to a system of European ‘multi-level governance’ with wide consequences for the linkage between the represented peoples of the Member States and their representatives on both national and European levels.