The Constitutionalization of the European Union Alexander B

ü

rgin, Berthold Rittberger, Frank Schimmelfennig, Guido Schwellnus

1. Overview

The project analyzes processes of constitutio nalization on the EU level in two issue areas: 1.) the

extension of powers of the EP

2.) the

institutionalization of human rights

EU constitutionalization is a puzzle for rationalist and constructivist theories, because it can neither be explained as a bargaining result on the basis of the material interests and power of member states, nor does it indicate an increasing convergence of member state positions as a result of socialization processes.

2. Theory: Rhetorical Action

To address this double puzzle, the project proposes the mechanism of strategic use of

rhetorical action

arguments in a , i.e. the community environment, to explain why despite persisting divergence in constitutional member state positions both EU-level human rights protection and EP powers have increased over time.

Within a highly institutionalized environment such as the EU, which is normatively based on a liberal democratic community ethos, rhetorical action is assumed to be relevant because actors are forced to justify and legitimize their behavior with reference to community norms. This is specifically the case in issues regarding the constitutional nature of the Union.

Rhetorical action does not imply persuasion and socialization as a result of argumentation processes.

Actors holding contravening positions are silenced or shamed into compliance without necessarily changing their views after argumentative defeat.

3. Theory: Variables

The dependent variable of the project is constitutionalization is more likely to occur:

constitutional change

.

As independent variables, the theoretical framework suggests four conditions under which EU 1.) the

salience

of the issue, i.e. whether the pooling and delegation of competences to the EU level undermines domestic or international human rights protection or parliamentary powers; 2.) the

publicity

of the negotiation process, i.e. whether the decision was taken in an IGC behind closed doors or was preceded by a public Convention process; 3.) the

consistency

with codified international norms; 4.) the

coherence

of a proposal with already existing EU norms and precedents in terms of treaty provisions, secondary legislation, ECJ judgments etc.

4. Method: QCA

The project utilizes the method of

Qualitative Comparative Analysis (QCA)

developed by Charles Ragin in the ‘crisp-set’ version, which uses binary coded variables. QCA allows to determine necessary and sufficient conditions in terms of combinations of independent variables on the basis of Boolean algebra.

Depending on how contradictory cases (combinations for which both positive and negative outcomes occur) and remainders (combinations empirical cases) are for which there are no treated, QCA parsimonious or ‘conservative’ results.

gives more For the analysis, the independent and dependent variables are coded for ten constitutional decisions in the history of the EU (ECSC 1951, EDC/EPC 1953, Rome 1957, Luxembourg 1970, Brussels 1975, SEA 1986, Maastricht 1992, Amsterdam 1997, Nice 2000, Constitution 2004) with regard to four sub-categories within both human rights (civil and political rights, non-discrimination, minority rights, social rights) and EP powers (legislative powers, budgetary powers, Commission appointment, Commission control).

5. QCA Results

The resulting combinations for the QCA analysis can be displayed in a truth table: From this truth table, the necessary and sufficient conditions for constitutionalization can be derived.

The results show and a

salience as the dominant factor time-dependent alternative mechanism

after the SEA:

6. Process Analysis: Aims

As a second step, in-depth process analyses are carried out for selected constitutional decisions. The analyses have two main aims: 1.) to substantiate the QCA results, i.e. to confirm or disconfirm that either salience or the combination of coherence, necessary consistency and sufficient constitutional change; and publicity to bring is both about 2.) to investigate whether the independent variables work via the mechanism of rhetorical action, i.e.

whether they are influential as arguments, or whether the outcome can be explained as a bargaining result.

To this end, the analyses measure member state positions on the respective issues, scrutinize whether the negotiation can be categorized as a bargaining or argumentation process, conduct a discourse analysis to investigate the use of arguments relating to the independent variables, and compare the differently justified proposals to the outcome in order to measure success.

7. Process Analysis: Case Studies

Two process analyses have been carried out so far: 1.) The first process analysis concerns

non-discrimination and minority rights in the Convention leading to the Charter of Fundamental Rights

. In the case of non discrimination, where further constitutionalization took place despite arguments low salience, the analysis shows that invoking salience and coherence are unsuccessfully used against an extension of the non discrimination principle, whereas the most often positively invoked and most successful argument was consistency with international norms. The outcome of the minority rights case (no constitutional change) does not seem to reflect an argumentative process but can be explained as a bargaining result.

2.) The second process analysis focuses on the issue of

parliamentary powers in the Constitutional Convention

.

This analysis confirms the dominance and success of salience-related arguments in the decision to further enhance the EP’s powers in the Constitutional Treaty despite strong opposition by big member states. The process was largely argumentative, but did not lead to converging views as a result of persuasion.

8. Conclusions

The QCA and process analyses confirm the project’s assumption that references to the community ethos provide a strong constitutionalization.

pull towards further Of the independent variables, most influential factor for

salience

proves to be the constitutional change, specifically in the initial phases.

In later stages,

coherence

with existing EU norms provides for a path-dependent momentum and in combination with references to the

consistency

with codified international norms can induce constitutional change in the absence of salience.

By contrast,

publicity

does not appear systematically related to constitutionalization.

to be However, although relapses behind already established standards do not occur, progress in constitutionalization is not automatic. Absent salience, constitutional change rarely occurs, and only when a strong argument with reference to both EU and international norms can be made.