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European Commissioner for Justice and Home Affairs

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at the Humboldt University

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To be invited by the Humboldt University to talk about the future of Europe is almost
like taking part in the Davos Forum among the economic leaders, so I must first
thank the organisers for giving me the opportunity to speak in this place, which is a
metaphor in itself for the Europe we have created.
Only three months after the signing of the Nice Treaty - the culmination of a legal
and political process that started with the Treaty of Maastricht, when European
integration took a fundamental qualitative leap from an essentially economic
approach to integration to a political one - Europe is living, with the launch of a urbi
et orbi debate on its future, not in a false ’Adam-like’ Utopia, but in a curious
paradox.
On the one hand, a time-traveller visiting from the immediate past could not fail to
marvel at the progress that has been achieved all over Europe by the European
project, imperfect and unfinished though it is, though real enough in the daily lives
of European citizens. Peace and socio-economic wellbeing are now an integral part
of our daily lives and environment.
An economic area without borders, with its consequent internal cohesion, has been
a reality since the completion of the internal market and the consolidation of the
principle of multiannual financing adjusted in line with the growth of Community
GNP, in the mid-nineties.
Monetary union, to derive full benefit from our commercial and economic potential,
both internally and externally, will be a reality in a few months, when we have the
euro in our pockets. It requires further substantial steps to be taken on the co-
ordination of economic and budgetary national policies in the euro area. This sort of
progress is now commonplace.
The Union’s external identity is a political reality which goes further than the well-
known constraints of a constitutional or sovereign nature. Particularly in the field of
security and defence, the Union can be likened to Molière’s “bourgeois
gentilhomme”, who writes prose without realising it. Just look at the level of
coordination between the Union and the WEU and our growing joint role within the
NATO framework, with all its implications for the day-to-day involvement of our
soldiers and security forces - of which Germany is an excellent illustration - in
international “peace keeping”, “peace making” or “peace building” operations.
In the area which most concerns me in my current professional capacity, the steps
set out in the Treaties towards an area of freedom, security and justice to be
achieved by 2004, as a direct consequence of the removal of internal frontiers and
the translation of our shared citizenship, are essential milestones in European
integration, as they combine a series of common measures on asylum and
immigration and free movement of people within the Union with the emergence of a
European judicial area and the consolidation of a series of instruments on police
cooperation aimed at combating transnational crime in an integrated manner. All of
this must be achieved while maintaining and extending our high standards on
fundamental rights and freedoms. The best example of this is the Charter of
Fundamental Rights of the European Union, proclaimed at Nice in December 2000.
Finally, what better illustration is there of the peace and progress which the Union’s
image projects than the irresistible attraction we represent for all the fledgling
democracies of Central and Eastern Europe, for whom entry into the Union is
synonymous with political stability and democracy, as it was for the Portuguese, the
Greeks and the Spanish before them, quite apart from the cost-benefit question of
being a member of the “club”. Forgive me for mentioning my personal recollections,
but it is on these I base my deep conviction that the enlargement process is not only
irreversible, but is also more immediate than the current significant difficulties in the
various areas of negotiation might initially suggest.

2
However, that is where the paradox lies. The same time-traveller would be surprised
at the doubts and indecision, and even the “Euro-scepticism” which seems to have
grown up among Europeans, or at least in certain sectors and among certain
political and economic players.
Where does this ambivalence come from? There are various factors:
- The feeling that the leap forward represented by the various reforms laid down in
the Treaties of Maastricht, Amsterdam and Nice requires a certain period of
assimilation and mature reflection.
- Legitimate suspicion at the sudden appearance of a UPO (unidentified political
object), to which the Nation-State must yield not just certain sovereign powers,
as the classic definition of the Court of Justice in Luxembourg has it, but all
sovereign powers.
- Dissatisfaction with a “despotic” approach to integration, apparently without
democratic sanctions or any real involvement on the part of citizens; this leads
the Union to look primarily at the legitimacy of the exercise, rather than its
origins, with all the dissatisfaction that entails as regards specific incidents or
frustrated hopes.
- The unstated conviction that an enlarged Union will lead us towards a political
and operational model which is completely unlike anything we now know, but
without daring to recognise it, pretending that everything can continue in the
same way in the future, like a zero sum game.
- The implicit but palpable conviction that the purely intergovernmental approach to
the reform of the Treaties has worn thin and leads to “lowest common
denominator” results, and consequently, to “continual revision” syndrome, with
dates being set in the Treaty itself for each successive round of negotiations.
I cannot but analyse the results of last's week's Referendum in Ireland in light of
these considerations. Indeed, over and beyond the follow-up, about which the
government and the people of Ireland must give a precise indication to the rest of
the Union, it is my view that the Irish people have spoken clearly - and the silence
shown by the high rate of abstention seems to me to be deafening. We all have to
face the consequences. Is it possible to continue to ask our citizens to follow their
elites without any clear explanation of the well defined contours of the common
project to which we are committed, with all the rights and obligations having to be
met democratically?
It almost seems as if the maxim coined by Stanislaw Lec, one of the best aphorists
of the twentieth century: “Be a realist, don’t tell the truth” has become an
appropriate adage in certain circles at this point in European integration. I am
convinced that this is a suicidal tactic and I think that we need to open this great
constitutional debate, whether we like it or not, pondering the truth openly, even if
the truth, as my compatriot Fernando Pessóa would say, brings disquiet.
I am convinced that most of the European political classes are currently closer to
Pessóa than to Lec, as shown by their willingness to join the debate. This University
can testify to that, having played host in recent times to various top politicians.
Despite their different points of view and different approaches, they are openly
contributing to the “cross-fertilisation” of the debate, thereby demonstrating the
appropriateness of the incorporation of the Declaration on the Future of the
European Union into the Treaty of Nice.

3
It is my opinion that the Heads of State or Government were aware last December
that - with a view to the reform in 2004 and over and above the tactical reasons
prompting them, which were mainly to ensure a “peaceful” ratification of the Treaty,
thereby guaranteeing the “ethical minimum” to make enlargement possible within
the allotted timespan, at the same time calming the dissatisfaction of those
disappointed with the results of the 2000 Intergovernmental Conference, including
the European Parliament itself - we are now engaged in a constitutional debate,
since an enlarged Union will be qualitatively different from the current one.
If we consider, like François Mitterrand in his “political testament”h to the European
Parliament in January 1995, that our obligation is to guarantee that at the point of
the last accession to the Union, it should remain recognisable as the Union we know
today, we must launch and vigorously feed this debate on what we want to achieve
together and with what resources at European level. This is what should be
understood by the emphasis laid by the European institutions, and the Commission
in particular, on organising a major debate throughout this year between political
players and civil society.
In my view, although I may be hasty in my conclusions, an enlarged Europe can
only be achieved following federal mechanics , requiring a “constitutional” political
methodology. Otherwise, we will be condemned to having an enlarged Europe in
merely rhetorical terms, where the “à la carte” model will be in general use. I
consider that the advantage of the first model is that, as the Federal German
President, Mr Rau, said in his address to the European Parliament in April this year,
it creates the conditions and parameters for a grammar of freedom and solidarity,
allowing the sovereign people to define the rules which bind them, the areas in
which powers are delegated and to whom they are delegated and how such powers
are to be organised and limited.
Within the general issue of European constitutionalisation, the organisers have
asked me to touch on the question of the “Convention” model used when the
Charter of Fundamental Rights of the European Union was drawn up, in parallel
with the 2000 Intergovernmental Conference.
It is clear that the “Convention” model itself is only valid if it is part of a constitutional
framework and debate which incorporates the various European sources of
legitimacy, both at national and European level. In my opinion, this was the secret of
the Convention which drew up the Charter of Fundamental Rights. Its members
agreed to have a “constituent” political discussion on a project of shared values and
did not consider themselves as the all-powerful representatives of legitimate
individual interest as is usual in an Intergovernmental Conference, whose primary
task is to negotiate amendments to the areas of individual power within the Union.
I would thus begin by asserting that the "Declaration on the future of the Union"
forms an important part of a consideration of the path that the European integration
process has taken towards the establishment of a full constitution. Let us look more
closely at the basis for this assertion.
First of all, as the Court of Justice of the European Communities has so often
stated, substantive constitutional law exists within the Community legal system: it
derives from the Treaties and from the interpretation of them by either the
legislature or the judiciary, whether constituted, in the latter case, by national courts
in their capacity as Community courts, or by the European judicial system itself.

4
That is why speaking of the establishment of a constitution does not strictly mean
inventing the wheel. However, we must recognise that it does imply at the same
time addressing the symbolic and politico-legal significance of such a process
culminating in the adoption of a formal text that clarifies and codifies this
substantive constitutional law.
Let us accept, prior to discussion, openly and with a sense of rigour, that the
purpose of a process of constitutionalisation is ultimately to produce a constitution,
constitutional Treaty or founding Treaty with a constitutional role. Let us also accept
that the very term chosen to describe such a legal instrument is, in itself, not
innocent.
The "process of Union" launched with Maastricht generated a momentum towards
the progressive establishment of a constitution, reflected in the recognition of the
(internal and external) political dimension of the European integration process,
along the broad lines set out in the preamble to the Treaty on European Union. This
momentum is vaguely discernible behind the frequently cited and diversely
interpreted phrase: "the process of creating an ever closer Union among the
peoples of Europe".
Adopting a text giving constitutional form to this gradual process would bring this
momentum into clear focus and reflect, with political support and legal rigour, the
ultimate meaning of "an ever closer Union among the peoples of Europe", of an
enlarged Union with a continental vocation.
I am well aware that this intention, right from the outset, meets with opposition from
those who interpret constituent power and constitutional texts in the most usual way,
an interpretation inescapably tied to the Nation-State.
Let me explain. I do not contest the fact that the Constitution is the formal legal
instrument that crystallises the supreme power of a people to institute sovereign
political power in a given territory. Even less do I contest the inability of a European
process of constitutionalisation to create what does not exist, namely, a European
people or delimited territory where this hypothetical people would institute a
sovereign and all-embracing power.
Simply, beyond the specific limits to national sovereignty that result from a
globalisation-driven interdependence and from the very pooling of sovereignty which
the European project already represents (even without a European constitution),
beyond these limits that would always make it advisable to move away from
traditional concepts of constituent and sovereign power in so far as they remain
inherently bound up with the Nation-State, itself undergoing profound change, it is
important to identify the potential benefits of clarifying the constitutional basis for the
European Union.
The first such benefit, in my view, would be confirmation of the essential legitimate
basis for the European integration process, that is, the joining into one Union of
diverse and autonomous States and Peoples, without whose meeting of wills the
Union would neither exist nor have meaning. In this context, the exercise of
European constituent power still emanates, and will continue to emanate, from the
will of the States legitimised by the consent of their citizens according to the specific
forms of government within their respective constitutional systems.

5
Second, acceptance of this constitutional basis for the Union would shed light on
the nature of the "ultimate goal" of the European project, that is, the ultimate
meaning of that "ever closer Union among the peoples of Europe". Many of the
reservations about, and hostility towards, the process of deepening integration stem
from the fact that the gradual and functional process presents the progressive
transfer of national sovereignty to the European level as the only development
scenario, hence the spectre of the centralist European "superstate" that some
identify with so-called federalism and others contest precisely on the basis of a
different interpretation of how the federal model could be applied to Europe.
Clarification of the European Union’s constitutional legitimacy should move beyond
the obvious disagreement about the significance of a true European federal model,
resulting largely from the inappropriateness of merely transferring to the European
level institutional frames of reference from federations that have developed within a
nation or that tend to create national references (whether inspired by the Germany
of Bonn or the United States of America). It should thus highlight the originality of
Europe’s politico-institutional integration and dispel once and for all the idea that our
ultimate goal is a single State based on the dilution of our national identities or even
of the leading roles of the Nation-States. I agree with President Rau, who stated
before the European Parliament last April, "Europe will continue to need the Nation-
States and their differences for a long time to come, since they are the guarantors
of diversity in Europe, ... but this does not mean that the peoples of Europe cannot
set rules and methods for common action".
This being the case, we must recognise that this process of constitutional
clarification requires all the inferences of such a choice to be drawn, and thus also
assume some of the risks inherent in that challenge, including, of course, the
acceptance that a review of Community powers may as much entail (new) transfers
of power for pooling at European level as it may devolution to national (or even
regional or local) level, in accordance with a critical application of the principle of
subsidiarity. That is to say that the "acquis communautaire" of the Union of the
future, instead of being defined by the inertia of successive juxtapositions of powers
defined over the years in different historical situations, should be sifted in the light of
the commonly accepted constitutional principles and criteria.
Such a process of re-ordering the Union’s powers must not be interpreted as
seeking to reduce European integration to its simplest form, or even as the (much
hoped-for by some) "window of opportunity" to empty European integration of its
political (and even social) dimension and return it to no more than a free trade zone
(within a framework embellished by a few liberalisation rules taken from the single
market "acquis"). It is clear that those who cherish such a plan would not fail to
profit from a move towards a constitution in order to express their goal (always
present in European debate). However, such a minimalist and minimising project
should be rejected by positively asserting the values that amply justify European
integration, its democratic foundation and the accountability of its institutions, that
is, by virtue of and in the name of effective popular support for the continuation of
the European project.
Moreover, the pooling of certain powers or parts of powers, justified historically at a
particular moment in the process of European integration in accordance with the
achievements or the degree of consolidation reached, can profitably (in compliance
with the principle of subsidiarity and in proportion to the results achieved) be
devolved to lower levels (national, regional or even local), with the European level
continuing to handle the mechanisms that are strictly necessary for the protection of
the common rules and the monitoring of their effective application.

6
At this point it is useful to identify the vectors on which the process of
constitutionalisation should be based. Curiously, the "Declaration on the future of
the Union" itself gives three valuable clues as to the scope of the exercise to be
undertaken, without identifying it as a "constitutionalising process": I am referring to
the delimitation of powers between the European Union and the Member States, the
simplification of the Treaties, and the status to be attributed to the Charter of
Fundamental Rights of the European Union. One might add to these the fourth
element of the Declaration relating to the role of national parliaments in the
European architecture.
In sum, we must first ask ourselves what we wish to do together and then define
how to achieve it, with which instruments and through which institutions.
This invitation to reflect on what we wish to do together must form the basis of the
debates on the future of the Union that are intended to culminate in a new
Intergovernmental Conference in 2004. We will then be able to identify the
substantive elements of a text giving constitutional form to European integration,
which will thus be structured around the shared values on which the Union is based,
identification of the basic principles of the various policies behind the project of
Union and a definition of the institutions that embody these values and shared
interests and their interaction with the national authorities (at their various levels
within each nation state).
Debating the future of the Union along these lines will enable us to reaffirm the
basic consensus of the main political families in Europe around the values that are
central to the European project. It is not about asserting an ideological concept of
Europe; rather it is above all about (re-)creating the deep sense of agreement
between the various ideological currents that, over the last fifty years, have been at
the basis of the very idea of European integration and have given it decisive
impetus. This political renewal of the legitimacy of the European project will clarify,
in a way that is more appropriate to the challenges of a globalised world, where the
dividing line is between Euroscepticism and anti-European populism of various
ideological hues (on the left and right of the political spectrum), and what the body
of values, principles and policies is that constitutes the meeting point between the
European currents of thought and political parties that consider the deepening of
the integration process to be of central importance.
First of all, the central, most complex and difficult question, which is full of
implications at a conceptual and practical level, is that of defining with rigour how
distinct States and different Peoples are to exist together in the same Union, not
renouncing their own identities but proposing to develop together a project directed
by values that represent their shared identity. This relates not only to substantive
policies, but also to the institutions that support and promote them.
In other words, in a world that is both globalised and deregulated internationally,
where regions play a decisive role in striking the major global balances, it is
essential to define and identify the values and interests common to Europeans, so
as to help establish forms of global regulation. This specific European identity within
an international context must not only be based on the rules, goals and practices of
economic regulation, but also requires a social and political contract legitimised by
the citizens of the Union’s Member States.

7
This means reasserting, externally and internally, the political nature of the
European Union and providing it, particularly on the international stage, with the
necessary means and instruments to intervene as a fully-fledged partner in the
tasks of global regulation, thus empowering the national sovereign powers, none of
which, without exception (whatever their size), could otherwise aspire to such a role.
This is expressed in the recognition of the central importance of the foreign, security
and defence, and trade policies in the European Union of the future.
The basis for such assertion must be found in the values underpinning our shared
project at an internal level. Here a founding and legitimising role is played by
Fundamental Human Rights, the affirmation of a political, economic and social
model based on the protection of human dignity and the guarantee of democracy,
together with the protection of the Rights and Freedoms of Citizens.
A constitutional text for the Union must thus incorporate a Charter of Fundamental
Rights which forms the basis for a social and political contract legitimising the
European project.
From the constitutional status of Fundamental Rights derives the central role of
European citizenship, this civic status covering all who accede to it by way of their
nationality or citizenship of each of the Member States, and those nationals of non-
member States who legally, subject to certain requirements, acquire this status
within the context of the European Union.
The political consensus at the basis of the European project, or, if you prefer, the
shared constitutional basis of the project of Union, conferring guarantees of equal
treatment for the various Member States (as regards their diverse identities and
their specific autonomy within the common project), will go hand in hand with the
affirmation of the central role of the citizens in the definition of the powers that will
be shared at continental level.
In the name of these values, the Union of the future will increasingly be called upon
to make its presence felt in those areas where its added value enhances not only
the capacity of States to intervene at international level, but also their ability to
uphold the rights and freedoms of their own citizens. It seems to me an inevitable
outcome of this complex process that the Union will have to take on greater
responsibilities in areas that have traditionally been associated with the prerogatives
of national governments (foreign policy and diplomacy, security and justice), while in
other areas, the modern approach to governance in contemporary societies will
militate in favour of a re-allocation of responsibilities, possibly leading to the
devolution of powers from the European level to levels that are closer to Union
citizens (to national level or even down to regional and local level, or through
decentralised forms of partnership between the public and private sector, with
machinery for coordination at European level).
This new distribution of powers, redrawn both horizontally and vertically, will make it
necessary to readjust the common policies, be they the common agricultural policy
or competition policy, structural policy or the policy on protection of the environment.
In this readjustment, with inevitable financial repercussions, it will be essential,
rather than trying to define watertight compartments, to seek flexible solutions that
exploit the advantages that can be derived from tackling the issues concerned in the
broader forum of the Union; it will at the same time be necessary to ensure that the
solutions are applied (and explained to those concerned) in accordance with the
criteria of closeness to the citizen, openness and accountability. Such an approach
will therefore be less dependent on a hierarchical allocation of responsibilities and
will above all involve operational arrangements based on networking, with far-
reaching consequences in terms of organisation of the Community institutions and
the working methods of the national administrations.

8
If a genuine political and citizenship contract is to be concluded, the Union of the
future will also have to focus more closely on the social dimension, not only in the
context of the coordination of economic policies required by the single currency, but
also – and increasingly – as an integral part of the citizenship contract itself, which
acknowledges the central value of the individual and forms the foundation for the
common European venture.
This concern takes us straight back to the debate on the controversial issue of the
“European social model”, the very existence of which has been called into question
and which has been the source of heated arguments whenever an attempt has
been made to define it.
But it seems to me that, instead of trying to hammer out a dogmatic definition of this
“social model” as if it were a closed system, it would be better for us to identify
those essential components which, since they raise issues that are common to all
societies (albeit in different ways according to their level of development), could
benefit from responses which are coordinated and could in the long term even be
convergent at European level. I am thinking here of issues such as structural
unemployment, population ageing and the attendant pressures on social security
systems, unfamiliarity with new technology, and the challenge of safeguarding
values like solidarity and cohesion in a global context of keener competition and
faster technological change.
To some extent these issues were at the heart of the “Lisbon agenda”, the aim of
which was to launch a process that, in the long run, would enable solutions to be
found for strengthening the competitiveness of the European economy and boosting
its productivity while safeguarding the principles of social cohesion and solidarity
and the fight against poverty and exclusion.
The natural development of these objectives appears to me to be essential in order
to give substance to the political and citizenship contract that lends legitimacy to the
new efforts to deepen European integration.
But, having arrived at this point, reconfiguring the European project inevitably
places us in a position where we have to solve the central political paradox which
the Union has been facing so far: the increasing empowerment of the Community
decision-making bodies has not been accompanied by a gradual increase in the
political accountability that is essential to any democratic project. The result is that
citizens do not feel involved in European integration, or rather that public opinion in
the Member States, little informed about what is happening, has come to believe
that, in the name of efficiency and technocratic rationality, the machinery for
participation and policymaking is becoming weakened at national level, without this
loss being offset by corresponding gains at the level of the Union.
And in the face of this paradox, the most radical (but probably also the most logical)
of the federalists argue in favour of a move to a completely federalised model, if not
the creation of a fully fledged European superstate while, at the other end of the
spectrum, the most hardened advocates of national sovereignty call for a radical
downsizing of the Union’s powers and ambitions and adoption of the purely
intergovernmental model of minimum coordination, focused nearly always on the
mere liberalisation of markets.

9
It is also in the face of this paradox that we have to take up the challenge of
redesigning the institutional framework of the Union of the future with an open mind,
that is to say not with a view to transposing to the European level solutions devised
for the national context, but with the aim of making good the lack of political and
democratic accountability of the European institutions while maintaining different
levels of identification of citizens with representative institutions (on a European,
national, regional and local plane), since all the latter belong to the same European
political dimension.
The challenge I have sketched out very briefly calls, above all, for clarity in the
discourse of political leaders.
Citizens of the EU Member States currently labour under the belief (at times an as
yet vague and ill-defined notion) that major decisions for their daily lives, their
individual and collective well-being and their status as citizens are increasingly
being taken by Community institutions all of which, without exception, they perceive
as remote, functioning in ways that are difficult to understand and insensitive to their
wishes and real needs.
But, on the other hand, the national governments continue on the whole to deny the
role of the EU when, under their political contract with their electorate, they take full
credit for having achieved something which is often no longer entirely within their
hands as a result of the European integration process.
The upshot of this misrepresentation is that in the national political debate, and
particularly in the debate leading up to the most important political contract
concluded between political leaders and the people – I am referring here to general
elections – European issues have little impact or certainly do not loom large in the
choices made by the electorate. This is partly because information on the details of
European policies is not easy to obtain (and sometimes not made very
accessible ...) and partly because the debate is dominated by complex institutional
questions that are boiled down to a few ready-made ideas (federalism, preservation
of sovereignty, Euroscepticism, Eurorealism, etc.) or, in the best of cases, is
presented as a debate on “foreign policy” or something which the Member States
look after among themselves in the hushed corridors of Brussels and Strasbourg.
It is therefore in this area that a paradigm shift is most needed, that is to say a
change in the attitude of political leaders that will make it clear to citizens what
European politics has indeed now become: the domestic politics of each of the
Member States pursued in an interactive forum stretching across the whole
European continent.
The best method of remedying this lack of European political awareness among
citizens is not, in my view, to imagine an institutional set-up that would supplement
the European decision-making apparatus with a body made up of national
parliamentarians (a second chamber composed of members of the national
parliaments who would hold a dual – national and European – mandate). The
solution will lie in the opposite direction, namely incorporating European politics as a
permanent and natural dimension of national public life in the work of decision-
making bodies that are close to the grass roots, be they at national, regional or
even local level.
Seen from this standpoint, the Union’s institutional framework should be shaped
both by the nature of the policies in which the supranational dimension brings added
value and by the demands of networking or jointly exercising the corresponding
responsibilities at the different tiers of government.

10
In other words, let us first sort out what we want to do together, let us identify what
can be done by all and the areas where those who are ready and willing can move
ahead faster, and then let us redesign the institutions on the basis of those
intentions and ambitions, agreed collectively and endorsed with democratic
legitimacy!
Between now and 2004, we have time to launch this urgent debate. Are we
prepared to do so, and do we have sufficient ambition?
If the answer is yes, then the relative merits of a constituent convention model for
the 2004 reform versus the classic intergovernmental model will undoubtedly stand
out much more clearly.
In any event, to wind up my presentation and try to escape the charge of having
strayed from the topic proposed by the organisers of this event, I now wish to
outline the conditions that will have to be met if the convention method used for
drafting the Charter of Fundamental Rights is to be a success.
Allow me to spare you a detailed historical account of the Convention which
between December 1999 and October 2000 drew up the EU Charter of
Fundamental Rights. Suffice it to say that the Convention was a success story and
that this approach is currently regarded by many as the best option or, at least, a
possible instrument for preparing the constitutional reform sought for 2004. As you
are well aware, the Commission is fully behind this solution.
But if the convention is to be a successful means of conducting the current debate
on the future of Europe, two types of condition must be satisfied: one, which has to
do with the substance of the discussions and on which I have already spoken at
sufficient length, is that it must be a genuine “constitutional” debate, while the other,
more “infrastructural”, category comprises what I would describe as the material and
procedural conditions that have to be met in order to ensure that a future convention
is able to work properly and achieve its aims.
I will focus on three conditions that are, in my view, essential: the independence of
the convention, its decision-making arrangements and, lastly, its membership.
As far as independence is concerned, the condition sine qua non is that the Heads
of State or Government must, as they did in Cologne in June 1999, give the
convention a clear mandate in terms of the aim pursued and the topics to be
discussed. But we must realise that this will not be sufficient in itself. We all know
that the work of the Convention responsible for drawing up the EU Charter of
Fundamental Rights took a good many of the national administrations to some
extent by surprise, more engrossed as they were in developments at the
Intergovernmental Conference. There is no doubt in my mind that the work of the
next convention will be kept under closer scrutiny, through both the mandate issued
to its members and the administrative “support” they are given.
Since that is in my view a fact of life, I am convinced that if the independence of the
future convention is to be guaranteed – and it was basically that independence
which to a large extent made it possible to create a climate of confidence and a
spirit of “founding fathers” among the members of the Convention for drawing up
the Charter, irrespective of their origin – a minimum number of conditions have to
be met:
- The figure of a permanent president, chosen by the entire convention but from
among representatives appointed by the governments, should be maintained,
and the person chosen should enjoy indisputable political and intellectual
prestige. It is universally acknowledged that the calibre of President Herzog
contributed greatly to the success of the work of drawing up the EU Charter of
Fundamental Rights.

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- The number of members of the convention should be kept at a level that enables
work to proceed efficiently but should be large enough to ensure the presence of
a sufficient number of representatives of all the sources of national and
Community legitimacy, of all the different executive and legislative powers; it
should also – and this is something which offers added value in comparison with
the intergovernmental method – include representatives of the different political
forces and in particular of the opposition parties in the national parliaments.
- Working methods similar to those of the previous Convention should be adopted;
in particular, a Praesidium should be set up comprising representatives of the
different “estates” with members in the convention; systems of open coordination
should be established between them; and certain symbolic measures should be
taken, such as having meetings hosted alternately by national parliaments and
executives.
The second condition which has to be met, in my opinion, is that clear-cut
discussion and decision-making arrangements have to be established. The method
adopted in the Charter of Fundamental Rights Convention was to progress by
means of consensus, which meant, on the one hand, that the Convention
conducted its discussions and was able to put forward proposals as an assembly
but, on the other hand, that, since there was no right of veto, the President was able
to take the responsibility of judging when a majority consensus was to be deemed
to have been reached between the different component parts of the Convention.
I would stress that an ideal majority voting system would lead to a series of difficult
ideological discussions and balancing acts to achieve the right weighting and
representativeness of each of the components of the convention and even within
each of those components. Furthermore, a decision by consensus is not a
unanimous decision, since, as I have said, there is no right of veto. I know by
experience that, if the conditions I have just mentioned regarding the convention’s
independence are met (in particular, the legitimacy and representativeness of the
President and the Praesidium are guaranteed), the consensus method offers plenty
of room for political negotiation between the different forces represented at the
convention: European and national, majority and opposition.
It is, however, evident that in the post-Nice exercise, the conventional model will not
work autonomously, but will be inserted into a procedure and into the wider
machinery. In particular, the results of this 'convention' should be formalised
following the methods of revising the Treaties. That is why the next convention
should be able to meet two challenges:
- the first will be to guarantee that its conclusions go at the same speed as the
workings of the intergovernmental conference which follow them. One idea to
explore would seem to me to guarantee from now on that the members of the
Presidium participate in the work of the intergovernmental conference following
the modalities which have to be specified.
- The second will be to avoid that the convention falls into the risk of arriving at a
solution based on the lowest common denominator. I believe that, given the
constitutional nature of the debate and to avoid this risk, the convention should
get down to presenting different models of options since the different estates in
the convention opt for diverging solutions.

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Lastly, as regards the composition of the convention and the bodies to which its
members belong, I believe that the quadripartite structure tried out at the Charter of
Fundamental Rights Convention, together with an adequate involvement of the
other Community institutions and bodies, is the best formula. The presence of
representatives of the national governments, the European and national parliaments
and the Commission ensures that all the sources of legitimacy are represented at
the level of the European and national executive and legislative powers, along with
representatives of the main political forces in existence both across the Union as a
whole and individually in each of the Member States.
Furthermore, since the forthcoming convention is to focus on the constitutional
debate concerning the future enlarged Europe, I am convinced that it will be
essential to associate the candidate countries to the debates.
This brings my thoughts to an end. Speaking here a year ago, Joschka Fischer
called for the Union to move from a confederation to a federation. I, for my part,
despite my background as professor of constitutional law, will confine myself to
saying that what is in my view essential in this constitutional debate is to delete the
word “unidentified" in “UPO” and arrive at a clear IPO (identified political object)
We would all stand to gain from such clarification, and the constituent power, the
ultimate raison d’être of any conventional model, would thus be legitimately
accountable to the original sovereign power, which is, let us not forget, the people.
Baruch Spinoza, in the 17th century, in the middle of all the political identity crises
from which the existing Europe of Nation-States emerged, left usa phrase which
should appear on the title page of any manual of constitutional law: “the Community
method is the only rational one”.
It is this rational approach which should unite us to look together for the response to
the challenges of European political society in the 21st Century, while of course
maintaining the pluralism, diversity and individualities that will continue, as in the
past, to fashion our identity.

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