EUにおける立憲主義と欧州憲法条約の課題

新しいヨーロッパ-拡大EUの諸相

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Even before a European Constitutional Treaty was adopted in 2004, the European Union (EU) had already had its “Constitutional Charter”, according to the case-law of the European Court of Justice. The EU is founded on “constitutional pluralism”, under which the constitution at the EU level, as elaborated in the Constitutional Treaty, and those of the Member States are seen as united in a “European constitutional order”. In such an constitutional order, European peoples co-exist as EU citizens, “united in diversity.”
But the governance of the EU has been faced with a legitimacy crisis caused by asymmetry between negative and positive integration. On the one hand, the Internal Market and the Economic and Monetary Union are said to have, to a significant degree, deprived the Member States of their autonomy in economic and other policies and, on the other, there has been no consensus on a “European social model” to recover their autonomy collectively at the EU level.
The European Constitutional Treaty introduces a majoritarian system in which the Council makes legislation on a double majority voting with 55 per cent of the States and 65 per cent of the whole population. However, consensus based on bargaining is the rule in the decision-making of the Council, although the qualified majority voting has been increasingly stipulated in the various policy areas every time the EU/EC Treaty is amended.
In order to overcome the asymmetry problem, the Constitutional Treaty provides, as a second best, that the President of the European Council be a permanent post to exercise the leadership in consensus-building, that “enhanced cooperation” among some of the Member Sates be made easier, and that the open method of cooperation be strengthened in the social policy fields including social security and social protection of workers. But it does not seem that they would provide a sufficient instrument to deal with the asymmetry problem.
The EU, with more than 25 countries, would have to make decisions on the qualified majority (double majority) voting, not by consensus, in some future, if it wants to solve such difficult problems as the above-mentioned asymmetry. This appears to require the EU to meet two conditions: to ensure a social agreement based on distributive justice at the EU level and to avoid creating permanent minorities in the EU. Only through them would EU citizens be prepared to accept EU decisions under a majoritarian principle, which requires a stronger European identity based on EU citizenship.