The “Treaty establishing a Constitution for Europe” elicits divergent scholarly responses. An apologetic view holds that it is the best of all possible constitutions, given the current constellations of political forces. Such a viewpoint is countered by a mixed choir of critics for whom the document is simply another treaty, a “nostalgic project,” or a merely “semantic constitution.” Some even believe that the recourse to constitutional rhetoric endangers the rational substance of the European status quo; others fear that this very conceptuality could be damaged. The present chapter endeavors to find a third approach. It offers a critical stance as regards the unfortunate, phraseological, sometimes even ideological language of the Constitutional Treaty. Simultaneously, the constitutional text is taken seriously in its normative statements. This approach aims to reconstruct the document from a point of view which depicts it, despite its contradictions, as a project with a rightful place in the tradition of Western constitutionalism.

Constitutional law is special not only for the salient importance of its substance, but also for its concentrated yet open form and terminology. Hardly surprising, therefore, the issue of how to interpret and analyze constitutional law is a commonly and sometimes hotly debated topic in most constitutional systems.

The primacy of Community law over national law of the EC/EU Member States was recognized as one of the constitutive principles of the Community legal order as early as before the signing of the Treaty establishing a Constitution for Europe on 29 October 2004. The primacy principle together with the principles of direct effect and of uniform applicability are believed to constitute not only the foundation of effectiveness of the Community legal order but also play the role of the pillars of the unofficial European Constitution. The primacy principle is even seen as the embodiment of actual transfer of constitutional power to Europe.

“Our Constitution … is called democracy because power is in the hands not of a minority but of the greatest number.” This statement by Thukydides preceded the preamble of the draft constitutional treaty elaborated by the European Convention. Although not adopted by the intergovernmental conference, the proposed introduction illustrates that the Convention intended to attribute a central role to the concept of democracy – at least symbolically.

This contribution aims to assess whether the Constitutional Treaty (CT) succeeds in achieving a systematic “fit” between the legislative procedures and the relevant underlying competences. The system to be developed here aims at promoting democratic legitimacy, transparency and efficiency in the EU's legislative process. This is undertaken under the assumption that systematization might contribute to achieving these fundamental aims. Obviously, such a system needs to rely on generalization and simplification to a considerable extent; it cannot provide more than a model which must necessarily be subject to exceptions.

The constitutionalism of the Community legal order as an evolutionary process of transforming an international organisation into a constitutional legal order has found its latest expression in the Treaty Establishing a Constitution for Europe. This document evokes the language of the constitutional state when it refers to “this Constitution” in Article I-1 and expresses its gratitude to the “European Convention for having prepared the draft of this Constitution on behalf of the citizens and States of Europe.” However, ambiguity is not far behind. The length of the document resembles a carefully drafted prenuptial agreement rather than a constitutional text. Moreover, the reference to the Constitution cannot disguise the fact that it has been adopted as an international treaty in the usual procedure of an Intergovernmental Conference and will have to be ratified by each and every Member State to enter into force.

Taking a look at the ECB of today means, to a certain extent, rethinking the emperor's idea. The European Central Bank is independent and seems almost untouchable in its field of responsibility. Its self-image is stamped by its special status outside the institutional structure of the European Union. However, the indefeasibility and with it the self-conception of the ECB was finally questioned by the European Court of Justice. The Treaty establishing a Constitution for Europe designs a new institutional setting and possibly constitutes a new understanding. The question is to what extent does this new institutional setting redefine the special status of the ESCB and the ECB, and how does it affect questions of democratic accountability and legitimacy.

The fundamental right to an effective remedy as guaranteed in Art. II-107(1) of the ‘Treaty establishing a Constitution for Europe’ (CT) is part of a comprehensive guarantee of effective legal protection and procedural guarantees. In the following, this fundamental right and how it relates to Parts I and III of the CT will be investigated in detail. First, the scope of Art. II-107(1) CT will be identified in Part B. Part C comments on the binding effect of this right. Finally, in Part D, some aspects of the Union's system of legal protection will be investigated in the light of Art. II-107(1) CT, and it will be discussed whether this right could be an instrument to close gaps in the legal protection of individuals against measures of the European Union.

The main purpose of this paper is to consider the impact of the Treaty establishing the Constitution for Europe (hereinafter: the Constitutional Treaty or CT) on the realization of the Area of Freedom, Security and Justice (hereinafter: the Area or AFSJ). The paper has two parts. The first part deals with the Area in current law, whereas the second part focuses on the provisions of the Constitutional Treaty concerning the Area.

Many scholars of European integration have treated the Common Foreign and Security Policy (CFSP) as a specific area of the EU. This is due to the fact that CFSP, and before it the European Political Cooperation (which was a nucleus of CFSP), have remained primarily an intergovernmental framework, although other EC pillars evolved to a much higher supranational degree over the years. For some theorists of European integration it was a clear sign that foreign and security policy would always remain the realm of national governments, which occasionally were willing to coordinate their national interests. According to the old dictum of Stanley Hoffmann, this area of state activity belongs to so-called “high politics,” meaning that advanced integration in this field, in the sense of a creation of supranational institutions, will never materialize. This train of thought, called neo-realism in the discipline of International Relations, regards foreign policy as a highly controversial area guarded by national governments. This is so because foreign policy is essential to the survival of states and their citizens.

The European Union (EU) acts in the area of international trade through the community's commercial policy regulated by the European Community (EC) Treaty. The position of the Union in external trade relations is dependant on the unique legal character of this entity. By developing a legal order which is supreme to the law of its Member States, and creating a complex system of institutions and modes of decision-making, the Community has ceased to be a mere representative of the countries it comprises. The increasing transfer of competences from the Member States onto the community allowed it to aim at the realization of common objectives as opposed to merely collective ones. As a result, tensions between the EC and dissatisfied Member States occur and the delineation of competences may turn out to be crucial when interests of an individual Member State are involved. Therefore, the paper which considers the situation of the “new” European Union in the area of international trade, in light of the Treaty Establishing a Constitution for Europe (Constitutional Treaty), should necessarily investigate how the position of the EU will be strengthened vis-à-vis its Member States.