Constitutional reform in the European Union suffers from a post-functionalist dilemma: the options that are politically viable are not democratically legitimate and the options that are democratically legitimate are not politically viable. Against the background of the recent Conference on the Future of Europe and the involvement of transnational European Citizens’ Panels, this article asks whether there is any prospect of overcoming this dilemma and organizing fundamental reform of EU institutions that is both normatively legitimate and politically viable. For this, it examines four models of EU treaty reform and the way these have figured in actual EU reform processes: Intergovernmental Conference, European Convention, informal intergovernmentalism and a Citizens Convention. The article concludes that, as long as the European Union is best characterized as a ‘demoi-cracy’ in which political deliberation takes place primarily in national public spheres, the Intergovernmental Conference remains its main and inevitable forum for constitutional reform. Hence, alternative models of EU constitutional reform should be evaluated not so much on the basis of their potential to substitute the IGC but rather on their ability to catalyse the process and to pre-commit the member state governments.

Owing to the vagaries of the ‘constitutionalization’ of the European Union, legal scholarship has disregarded the momentous constitutional transformation brought about by the European Convention System. This is regrettable, not least because the Convention has reconfigured national constitutional authority in a cosmopolitan context. The emerging cosmopolitan constitutionalism is based upon three ideas: first, the exercise of state authority must also be legitimate from the perspective of those who are not citizens; second, a constitution must embrace fundamental rights and the representation of insiders in order to facilitate the representation of all, including outsiders; third, the authority of the constitution doesn’t just depend on endorsement by an independent people but also on recognition by other peoples who pursue the same type of political project. At the same time, any cosmopolitan constitutional system needs to leave space for particularity. It is therefore not accidental that the idea of a ‘margin of appreciation’ is of pivotal significance.

Now that the EU Constitution has been adopted, one might be inclined to think that the debate on the position of human rights in the legal order of the European Union has come to an end. For more than 25 years academics and politicians have discussed the desirability of EC/EU accession to the European Convention of Human Rights and have argued for or against a separate bill of fundamental rights. That is all over now: Article I-7 of the Constitution provides for Union accession to the European Convention, whereas part II incorporates the Charter of Fundamental Rights.

It would seem, therefore, that a solid framework for the protection of human rights in the EU legal order has been put in place. The rest will be a matter of implementation: taking fundamental rights into account when drafting and executing European legislation; invoking these rights before the Court of Justice; lodging complaints with the European Court of Human Rights when the EU institutions, despite everything, failed to secure these rights. All very important, albeit that some may find the daily application of human rights not as sexy as the large constitutional questions of the past.

So is this the ‘end of history’ for human rights? Quite the opposite. The best is yet to come!

While the Union's powers and responsibilities are ever on the increase and co-operation deepens as the Union begins to take positions more easily in the areas of freedom, security, justice and defense, it is seeking to keep the Member States and the Union together via the duties of loyalty. These are spelled out in general terms in Article I-5, and in more specific terms in specific contexts, such as those of the Common Foreign and Security Policy [Article I-15(2)]. Article I-5 is entitled ‘Relations between the Union and the Member States’, but it is also central to the relations between the Member States themselves in terms, for example, of the exercise of their voting rights in the Council of Ministers. The Article consolidates provisions that are currently scattered over various Treaties but not without adding some novelties.

Both the EU- and the EC-Treaties refer in prominent places to the establishment of economic and monetary union (Articles 2 EU and EC). This union is mentioned as one of the principal means of achieving the Union's and the Community's economic and social objectives. Such a prominent place is not allotted it in the Constitution. In its effort to separate the basic provisions from the other provisions in the treaties, the Convention decided to retain only the European Union's objectives in the actual constitutional part. The concrete activities pertaining to the economic and monetary union, as well as its ‘guiding principles’ of stable prices, sound public finances and monetary conditions and a sustainable balance of payments were relegated to Part III that deals with the Union's policies.

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.

Since the Maastricht Treaty of 1992, the principle of subsidiarity is to govern the exercise of powers between the European Community and the Member States in areas that do not fall within the exclusive competence of the Community. According to the treaty provision, the principle means that the Community can only take action if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. A similar provision is now part of the draft ‘European Constitution’ 2003; it merely adds that Member State action can be taken at the national, the regional and the local level. Even without this useless supplement, the definition of subsidiarity looks fairly complicated.

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.

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.

Between 11 March and 29 October 2004, between Madrid and Rome, the European Constitution has turned from an uncertain possibility into a certain (albeit not full) reality. The day of the Madrid train bombs killing 190 and wounding 1500 is as inseparable from the history of the Constitution as the date of its signature, 29 October. Those events of 11 March (and the ensuing government blunders) moved the Spanish people to end the reign of Aznar's Popular Party. This in turn unblocked the Constitution talks that had got gripped, among other things, due to Spanish intransigence in December.

In several ways the particular sequence or succession of events from 11 March to 29 October can also be seen as symbolic for this particular European Constitution. Let us select three angles: an historic, a formal and a substantive one.

The provision relating to the adoption, ratification and entry into force of the Treaty establishing the Constitution for Europe is probably one of the most difficult ones, both in legal and political terms. It is supposed to define the legal nature and quality of the entire EU process in its present and future phase. There is an inherent ambiguity about the legal nature of the treaty, which is already apparent in the title, and there are profound political implications as well. Is the Treaty establishing a Constitution for Europe a treaty or a constitution? Can it be both or neither? These are hard questions indeed.

While the Nice Treaty cast a shadow over the Convention's work on the institutions and led to the project's first failure in the Brussels Summit, the war in Iraq cast shadows over the common foreign and security agenda. On the one hand, it proved the extent to which Europe is divided over substantive positions and over the means to act, particularly the resort to war. On the other hand, there is an increased popular sense that Europe should play a role (reflected in Eurobarometer polls, including one especially commissioned by Giscard). Article I-40 of the Draft Constitution on defence reflects that ambition. It remains to be seen whether this facilitates Europe to unite when it comes to giving foreign policy teeth in the form of a real and effective common ‘defence’ policy.

As with most other provisions of the Constitution, Article I-40 in the main builds on and consolidates the texts as we already have them in the existing Treaties, but at the same time, it innovates.

The European citizens' initiative (ECI) is a new device of participatory democracy, which has its own characteristics, unknown to date at any level of national or trans-national government. It is designed to allow the citizens to take an active role within the law-making process of the EU. The specific features of this process affect the legal nature as well as the functioning of the new participatory device. Both will depend strongly on the European law, which shall determine the procedures and conditions required for the ECI.

The challenges for the system of judicial protection of the EU spring from two main developments: first, the enlargement of the EU, which inevitably affects all institutions of the Union, most notably their organisational structure and modus operandi, second, the deepening and widening of the areas falling within the scope of competences of the EU. Article I-28 Draft Constitution states that the Court of Justice of the EU shall include the ECJ, the High Court and specialised courts. These courts, together with the national courts of all levels, constitute the intricate nexus offering judicial protection in the EU. The issues that dominated debates on the reform of the system of judicial protection varied from the amendment of Article 230.4 EC on the locus standi of applicants, to the impact of the incorporation of the Charter of Human Rights and to the competences of the ECJ in the areas of the second and third pillar. They all relate to the deepening and widening of the Union through this Draft Constitution.

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