Fourth Scholarly Panel: Constitutional Law and the EU
Chair: Dr. Jiri Payne

European Constitutionalism: Assumptions and Consequences (a thumbnail from Croatia)
Zoran Oklopcic
Department of Constitutional Law, Faculty of Law, University of Zagreb, Croatia

The paper seeks to compare two accounts of the idea of constitutionalism from a Croatian perspective.: the so-called European constitutionalism and its standard variant. Drawing on the works of N. Walker , R. Bellamy, J.H.H. Weiler and others, I will try offer a sketch of the conceptual presuppositions that underlie both of these variants. My initial working hypothesis will be that the idea of constitutionalism can be broken along the following lines:

standard constitutionalism	«european» constitutionalism
state-centered	Beyond the state
Centrality of pre-commitment	No-precommitment; permanent renegotiation
Gag-rules	Open agenda
Finality of constitutional adjudication, kompetenz-kompetenz	The issue of final arbiter – irrelevant Constitutional dialogue between supranational and national fora
One People (and/or Volk ?)	Multiple demoi
Normative vision of political legitimacy: consent/fair play/natural duty of justice (?)	Weberian vision of political legitimacy supplants the discussion of «normative» elements – (factual acquiescence is what matters)

The discussion about constitutionalism will also feature other classifications, ( e.g . N. Walker 's constitutional skepticism, historical-contextualism, serialism, processualism) and would hopefully glimpse upon the debates about (neo)functionalism.In doing so, I will devote the particular attention to the questions of: state-centeredness of the constitutionalism, identity of the constitutional subject (M. Rosenfeld), the problem of Kompetenz-Kompetenz, etc.
In the second part of the paper I will try to connect the conceptual debates about nature of the Union , fundamental boundaries and alike, with the normative debate about the legitimacy of the European Union's political order. The idea is that the particular stance towards the problem of the democratic deficit, or to the issue of the construction of supranational demos, is predicated upon the question of what is the basis for the legitimacy of the political order..(For example, if we assume that the consent of the governed is the basis for the legitimacy of the political society, we should take democratic decisionmaking seriously as well.)
In the final part of the paper, the Croatian perspectives on the idea of constitutionalism will be (re)constructed (both prior and after the independence) in order to see how they fare under the paradigm of the “European” constitutionalism. Drawing on the work of H. Arendt in “On Revolution”, I will argue that the Croatian political actors' idea of the constitutionalism is distinctively old-fashioned, and relies on the French idea of the People (whether it is the Volk of Demos is of a lesser importance) as the sovereign power, represented in Parliament which is, according to that view, inherently “stronger” than other branches of government. This view is also mirrored in the reluctance of the political actors to defer to the Constitutional Court in the separation of powers controversies.
More importantly, the Maastricht-Urteil-type perception of the national sovereignty and of relationship between the “supranational” and national level of governance, makes us wary about the possibility that Croatian and “European” constitutionalism can be reconciled beyond the mere pragmatic compromise.

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Incorporating the Principles of Co-equal Branches into the European Constitution: Lessons To Be Learned From the United States
Mark K. Gyandoh, Esq
Philadelphia, PA, United States

As an enduring modern-day democracy based on federalist principles the United States provides a shining beacon of light for others to follow. With the European Union about to establish a European Constitution it seems only natural for those interested in the future of the European Union to study how the United States has managed to operate under a federal system.
This paper will discuss the importance of having a constitutional body that has final say on the constitutionality of the European Constitution. The United States Constitution failed to include such a provision. It was not until Supreme Court Chief Justice John Marshall's opinion in the famed case of 1803, Marbury v. Madison that the Supreme Court established itself as the final decision maker on the constitutionality of laws. This is despite the fact that the Constitution designated three co-equal branches (legislative, executive and judicial) without establishing which branch had the final say on the constitutionality of laws passed in the Country.
Under the European Constitution five main branches are established: the European Parliament, the European Council, the Council of Ministers, the European Commission and the Court of Justice. Although the Court of Justice is given some authority on interpreting the European Constitution the Constitution falls short of naming the Court of Justice as having the final word on the Constitutionality of laws.
The lack of a designated body which has final authority on what is constitutional under the European constitution has some obvious implications. Take for example, Title III, Article 9, paragraph 2 of the European Constitution which states the following:
Under the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the Member States in the Constitution to attain the objectives set out in the Constitution. Competences not conferred upon the Union in the Constitution remain with the Member States.
Like the Tenth Amendment of the United States Constitution, the above provision gives express powers to the Union and reserves the rest to Member States. Although the European Constitution is far more detailed than the United States Constitution in explaining the express powers given to the European Union there will inevitably arise an area of “competence” not contemplated by the Constitution. Without a constitutional body to have the final say in interpreting the Constitution and to decide whether the Union or Member State has control of a “competence” it is inevitable that conflicts leading to rifts could develop between the Member States and the Union.
This paper will analyze the case of Marbury v. Madison critically, discussing whether in fact Justice Marshall reached the correct decision. The paper will conclude by applying the same critical analysis to the European Constitution to determine which of the five main branches should have final say on the constitutionality of laws established by the Union . It will suggest that perhaps each of the branches in its own right can decide the constitutionality of the laws promulgated through the European Union because each branch is a body created by the Constitution. The paper will further conclude that a provision be added to the Constitution memorializing this concept.

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Who should Govern the EU and in What Manner?
Fausto Capelli
Director, Director of Collegio europeo di Parma, Via Silvio Pellico, Milan, Italy

Taking into account the existing defects in the organisation of a modern State, run in accordance with traditional democratic method, the Paper suggests that the institutional system to be applied to the European Union should maintain unaltered the current division of institutional competence between the European Parliament, Council of the European Union and the European Commission with the introduction of some changes/modifications in relation to the involvement of the European Council and the European Court of Justice.
In fact, according to the conclusions reached in the Paper, it would not be an advantage to transpose the traditional democratic method within the European Union.
It is possible to explain the reasons for this is a simple and concise way . In a passage in Book VII of "The Republic" ("Politeia"), PLATO reaches the following paradoxical conclusion: "Government should be given to persons who do not enjoy governing, otherwise their rivalry will end in conflict".
If, however, we consider to the institutional situation of a normal democratic State, in which the objective of the rival parties (majority and opposition) is that of attaining political power to be able to exercise it, how will it be possible to achieve the result suggested in Plato's paradox?
To be more precise, if all those who engage in politics, as acknowledged by Max WEBER, enjoy exercising power, how will it be possible to entrust with power those who do not desire it?
Perhaps, if we translate the paradox into other terms, it may mean that those who join a gover­nment must be in a position to exercise legislative power – in order to govern in the widest sense – without, however, holding political power (which only fuels rivalry and leads to conflict).
If this is true, PLATO's paradox, in its monumental simplicity, takes on general validity, neutralizing the effects of that fundamental human characteristic, funded in psychology and destined to fuel the political conflict to which we have referred.
The problem inherent in the paradox can therefore find but one solution in institutional terms: of which, the most reliable one might be that which has been found, based on experience, within the system employed by the European Union and described in detail in the Paper.
The solution would consist, therefore, not so much in depriving the representatives of each of the political parties, in competition with each other, of their love of power – obviously an unachievable objective – so much as putting them in the psychological position of not having to depend on the defeat of the other party in order to exercise legislative power.
This is, in fact, what happens within the European Union's institutional system, as the Paper has attempted to clarify.
With regard to resolving the problem of the adoption of legislative acts in the European Union, this has been considered in the Paper as democratically acceptable only in the co-decision procedure with the addition of some substantial institutional changes.
From one side the changes suggested in the Paper tend to protect, in the most beneficial way, citizens as a whole, thanks to the permanent competition between the different positions held by the various organs involved in the european legislative process which are carried out within the co-decision procedure. From the other side the changes proposed in the Paper tend to assure a better relationship with the States non members of the EU.
In order to achieve these objectives, the involvement of civil society (organised and non-organised) has been envisioned in the Paper with the purpose of providing the widest contribution possible of ideas, information and knowledge to the legislative organs of the European Union and even to the executive organs.