Who are really the masters of the EU treaties and where does constituent power in the European Union lie — Markus Patberg, interviewed by Kasia Krzyżanowska, offers his answers to these questions.
Kasia Krzyżanowska: Let me start with a diagnosis. You begin your book with a reminder about the fiasco of the Philadelphia moment that could have occurred in the European Union, but failed — the Constitutional Treaty was never adopted. Last year, when the corona-bonds were to be established, we talked about a Hamiltonian moment. However, recently The Economist published a piece in which the author argued that we are now witnessing something opposite – a Calhounian moment marked by the challenges posed to the primacy of EU law by the national constitutional courts, most notably by the German one, but also the Polish one, and the French Conseil d’État. But after reading your book I got the impression that actually we do not need to refer to any American moment, so to say, since it is quite natural for the EU to be constantly fluctuating between crises. Are we really witnessing EU disintegration?
Markus Patberg: Great question. It is certainly true that in one way or another the EU always seems to be in crisis, and to some extent this has to do with the way in which we think and talk about the EU. Relatively ordinary challenges, like disagreements among the member states, are quickly interpreted as some sort of crisis, although they could simply be called politics. Of course, the EU also had to face some real trouble over the last one and a half decades, probably the most dramatic was the Euro crisis. But it is one of the remarkable features of European integration that it proceeds not only despite of these crises, but often also through them, because they tend to lead to deeper integration.
On the question of disintegration, the first thing to say is that disintegration is a term that is often used in a rather hyperbolic way in public discourse. It is taken to mean that the EU is completely falling apart, that it is dissolving – “this is the end of the EU”. It seems clear to me that despite all the EU’s crises this is not going to happen any time soon. But the term disintegration is also used in EU studies, and there the concept is being used in a more analytical way, and refers to different possible ways of reversing European integration. These can be more or less far reaching. For example, Brexit has been described as a case of differentiated disintegration. But there are also other political and scholarly proposals that aim at “less Europe,” so to speak. For political theorists, this raises very interesting questions as to the conditions under which European integration could also shift into the reverse gear – in a legitimate manner. I think here are also some interesting links to the debate about constituent power.
In your book you write a lot about the democratic deficit, or, as you put in your words, citizens’ lack of political autonomy. According to you, the citizens cannot really exercise constituent power, since treaty-making in the EU is conducted either by means of emergency politics, or by court-driven over-constitutionalization. You make an even stronger claim that the European Union is based on a usurpation of constituent power. What does this usurpation rely on and what is the “constitutional mutation” that you criticize?
The central concept of my book is constituent power, which I use as a category of democratic theory. The meaning of this notion can only be fully understood in relation to the counter-concept of constituted power. Emmanuel Sieyès famously distinguished between pouvoir constituant and pouvoir constitué. This draws a line between the power to make a constitution and the power vested in the political institutions that are established by this constitution. Two very important ideas are linked to this distinction. First, only the people as constituent power have the right to establish public authorities. In other words, constitutions should have a democratic origin. Second, constituted powers – the government, legislature, courts and so on, must not decide on their own terms of operation. They should not be involved in decisions about the constitution. The point of all this is to secure citizens’ political autonomy.
What does this have to do with the European Union? I think of the EU as a constitutional entity. The EU is based on international treaties, but these treaties are a functional equivalent of national constitutions, because they enable, regulate and restrict public authority – the making of collectively binding decisions. In many ways this means that, certainly from the perspective of citizens, EU rule has become hardly distinguishable from state rule. Whoever decides on the EU treaties determines the structure and competences of a very important and powerful set of public authorities. De facto there are two main mechanisms for EU constitutional politics: intergovernmental treaty making and integration through law. The EU is shaped by governments and courts. This leads me to the issue of usurpation.
If we look at this constellation with the distinction between constituent and constituted powers in mind, it becomes clear that something is not quite right, because what happens in the context of European integration is that constituted powers operate as de facto constituent powers. Take the national governments – they are key players in the EU political system, yet they are also the main protagonists of EU constitutional politics. When they transfer competences to the EU, in a way they are putting them in their own hands. When they decide about the shape of EU institutions, they are also deciding about their own role within them. At the same time, no change is possible without their agreement. This is what I call the usurpation of constituent power in the EU.
Is the usurpation of constituent power the same thing as “constitutional mutation”?
The notion of constitutional mutation comes in when I try to describe the consequences of this constellation. One of the things I try to argue in the first chapter of the book is that theusurpation of the constituent power also has consequences in the form of constitutional mutation. We increasingly see constitutional change that is propelled in a mode of emergency politics. We saw this in the euro crisis, and authors such as Jonathan White or Christian Kreuder-Sonnen have very convincingly described it. We also see what Susanne Schmidt has called, Dieter Grimm as well, an over-constitutionalization of the EU treaties by the European Court of Justice. These are problems that are, if not enabled, then aggravated or made more significant by the fact that there is a usurpation of constituent power, and by the fact that governments and courts are basically the main actors of the EU constitutional politics.
Given your theoretical perspective and approach how would you asses the position of the European Parliament? Why can it not be perceived as an institution in which constituent power is vested?
The EP is the only directly elected EU institution, so it is seen by many as the most important representative of citizens in the EU and as having higher democratic credentials than the Commission and the Council. I do not necessarily disagree with that, but if it is true, then it applies to normal politics, to day-to-day decision making in the EU, but not for the case of constitutional politics. Because when it comes to decisions about the structure and competences of the EU, the EP needs to be treated as a constituted power as any other. The problem of intuitional self-interest does not disappear only because we are dealing with directly elected representatives.
To illustrate this we can ask: should the EP be allowed to decide whether the EP gets additional powers, which perhaps previously belonged to the national parliaments? I think the answer is obvious. If we blur the line between constituent and constituted powers, there emerges a danger of self-empowerment. This is why handing over the task of shaping of the EU to the EP is not the solution.
You powerfully argue that despite the common understanding that sees the member states as the masters of the treaties, our attention should be given more to the citizens as their masters. As intellectually brave as this is, how can we understand this change?
This claim follows more or less from what I said about the usurpation of constituent power. The notion of the masters of the treaties certainly correctly describes the legal realities, obviously in the sense that it is the member states, represented by their governments, who decide on the EU treaties. But if we look at this through the lens of constituent power, it appears normatively problematic. The notion of the states as the masters of the EU treaties implicitly relies on a picture of the EU as a creature of international law. But the EU treaties have long evolved beyond classical international agreements. They now fulfil constitutional functions. They form the basic legal order of a political system that makes collectively binding decisions. From a democratic perspective, only those who are subject to the public authority of the EU can be the masters of the treaties, and that is the citizens.
I found it really fascinating how you identified and then described all the public narratives that are floating in the public sphere in the European Union that consider constituent power. You really convincingly linked these narratives to different political theories. May I ask you to briefly say a few words on these four narratives? Who is conceived as a citizen, or a demos, and what are concrete examples of movements that realize these principles?
What is fascinating is that the idea of constituent power in the EU is not purely academic, but citizens have actually started to challenge the role of the states as the masters of the treaties. They are reclaiming constituent power. In the book I try to show this by reconstructing public narratives. I look at various sources: at political appeals, manifestos, newspaper op-eds, interviews, blog posts, et cetera. I do so with regard to periods of constitutional crisis in the recent history of the EU, particularly the failure of the Constitutional Treaty and the Euro crisis. What I find there is that many political actors, for example, movements such as Attac or DiEM25 [Democracy in Europe Movement 2025], claim that the citizens have been illegitimately withheld the right to shape the EU. They put forward new ideas of constituent power. What is interesting is that while all the narratives agree that something is wrong with the way in which decisions about the EU constitutional order are made, there is a lot of disagreement as to where constituent power actually lies and what follows from that. What I have done, drawing on theories of EU democracy, is to formulate these narratives as systematic models of constituent power. Let me briefly say what these entail.
The first is the regional-cosmopolitan model. It holds that constituent power lies with the political community of European citizens. By contrast, the second model, the demoi-cratic one, claims that constituent power is held by the peoples of the member states. And then there is a third one, the model of pouvoir constituant mixte, which pursues a middle course and claims that actually constituent power in the EU is held by citizens in two roles, as national citizens and as European citizens. Finally, there is the idea of destituent power. This idea attributes to what I call a non-delineated multitude the right to dismantle constitutional structures in the EU. I argue that this narrative does not amount to a self-standing model in the end, but rather describes a dimension of constituent power that could potentially be integrated into each of the other three models. In my view, this provides us with very useful typology that can be used to analyse and compare different notions of EU’s ultimate source of legitimacy, and it also provides the basis for my own attempt to develop a new theory of constituent power in the EU.
When constructing your theory of higher-level constituent power, you refer to the already existing legal framework in the Treaty on European Union (TEU): most notably, you build your concept of a Permanent Constitutional Assembly on Article 48 of the TEU, which envisions the procedure of changing the treaty. It is a very innovative approach to establish a council that permanently deliberates about European integration. Can you briefly describe how you would envisage the functioning of this institution, with its competencies and structure? How might it serve as a part of the sluice system that you describe?
The basic idea of this institutional proposal is that in a complex entity such as the EU we cannot expect constituent power to emerge spontaneously. If we want to enable citizens to take control of European integration and to make democratic decisions on the basic legal order of the EU, we need some kind of institutional channel. In this context I refer to Bernhard Peters’ notion of a sluice system because it nicely captures the idea that representative bodies ideally fulfil both transmission and filter functions. They enable citizens to make their voices heard, but they also ensure the justifiability of political decisions.
My idea for constituent power in the EU is indeed to transform the Convention provided for by Article 48 of the Treaty on European Union into a permanent constitutional assembly. This would presuppose a democratic authorization from the constituent powers of the member states. So, the citizens of the member states would have to give their consent. The assembly itself would be subject to certain constraints, for example, it could not question the sovereignty of the member states. But in general it would take on the exclusive competence to decide constitutional matters in the EU. The members of the assembly would be directly elected. One half in national elections, the other half in EU-wide elections.
Such an assembly would have a number of advantages as compared to how we currently decide on the EU treaties. Let me mention at least two. First, it would introduce a clear separation between constituent and constituted powers into the EU system. The assembly would play no part in the ordinary workings of the EU, so this would eliminate the problem of institutional self-interest from EU constitutional politics. Secondly, the direct election of representatives whose only task is to decide on the structure and competences of the EU would mean that there would have to be election campaigns focused on the future of the European Union. This could lead to greater responsiveness, it could lead to more mobilization, and a real competition between alternatives. So, some kind of democratic politicization of European integration.
You have also argued that despite the fact that the procedure of Article 48 TEU has not been put into practice yet, we have witnessed something similar during the Laeken process that encompassed the Convention on the Future of Europe (2002/2003) and some ideas that we now regard as innovative were already used at that time. What can we learn from this past experience of the EU in terms of participation of citizens?
The Constitutional Treaty and the whole Laeken process to me was a major step in the democratic development of the EU. Even though it failed, it clearly expressed the idea that the EU is now a constitutional entity and that decisions about its basic legal order should be made through some kind of democratic procedure that resembles the way in which we ideally decide about domestic constitutions. In this sense the Laeken process was a major step forward. It also had many problems. One of them obviously was that the assembly itself had no power to make decisions. But it still was a major step in the democratization of the EU.
What really grasped my attention was the fact that people were invited to send proposals and use open platforms to discuss proposals. This is something that also happened in the Icelandic constitutional process. It is really mind-blowing how the public could be engaged with new digital technologies. One last question: how would you assess the current involvement of the citizens in the Conference on the Future of Europe?
The Conference on the Future of Europe is the democratic project of the day in the EU, clearly of interest to anyone interested in constituent power. One way to look at the Conference is as a democratic promise to finally set things straight. So, as an attempt to empower citizens to take the lead in determining the future of the EU. This, at least, is the message of the bottom-up rhetoric that has accompanied the Conference ever since it was first announced.
However, looking at the Conference with the idea of constituent power in mind, I have to say that I find the setup somewhat disappointing. One of the problems is that there is a clear top-down steering by the main EU institutions. Citizens will be consulted, but they have no decisional powers at all, so the constituted powers remain firmly in the driver’s seat.
Another problem is that the Conference has a very eclectic structure and composition. If we use the typology of regional cosmopolitanism, demoi-cracy, and pouvoir constituant mixte, which I outlined few minutes ago, and then ask ourselves “What is the notion of constituent power that underlies this project of the Conference on the Future of Europe?”, I think it is clear that there is no systematic conception of democratic authorization in the background at all. The Conference is supposed to include all kinds of actors from various levels, from the local to the European, but it is entirely unclear who is authorizing whom to shape the future of the EU and how.
In collaboration with Vilius Kubekas and Karen Culver
