The Case of the Constitutional Treaty

The 2002-2005 “Europe-wide debate” and the consequent Constitution-Making process is, together, a good example for what the absence of an EPS can mean for both the European elites and the European citizens (Lu 2008). Throughout the course of the Constitution-making process, the citizen knowledge level about the CT

remained low. A comparison between surveys conducted in June 2003 and October 2003 shows that once the intensive media coverage of the Convention died down, citizen knowledge of the Convention dropped from 45% in June 2003 to 39% in October 2003 (Europe-Flash EB No 142/2:5). Only four countries out of 25 had a majority of respondents having heard of the Convention even after the presentation of the Convention’s work to the European Council. As to the objective knowledge about the Convention, the type of text elaborated by the Convention remained unknown to most European citizens. Even during the period when the referenda in France and the Netherlands were attracting a lot of media attention, the interests and knowledge of citizens in the other Member States remained low (Eurobarometer 63:138). While the

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number of citizens who had never heard of the Constitution decreased by fifteen percent between Autumn 2004 and Spring 2005, with the exception of France and the Netherlands, the corresponding increase in the number of citizens who had heard of the Constitution was found mainly in the group that ‘knew very little about’ (up 14%) rather than the group that ‘knew the contents of the Constitution’. The entire

Constitution-making process, in fact, barely made any difference in citizens’

self-perceived knowledge of the EU (Figure 1).

On first sight, the debates in France and the Netherlands prior to the referenda appear to be good evidence that citizens did participate in the European-wide debate.

A closer look, however, reveals that the debates that seemingly involved ordinary citizens had come too little too late. They were neither an integral part of the ‘debate on the Future of Europe’ nor of the drafting process. In fact, the CT was not even necessarily the focal point. The exploitation of the campaign by domestic parties not only failed to invoke the European perspective in voters, but also had the effect of

‘re-nationalizing’ the debate that was made European by the elites.

In France, the choices of politicians to put their weight behind either Yes or No were determined more by domestic party politics than by the content of the

Constitution. The campaign saw the unfolding of a power struggle among and within political parties—particularly within the Socialist Party between Laurent Fabius and François Hollande. Fabius’ move to champion the No campaign, for instance, was seen as a calculated decision to rally the radical left to position himself as the left’s candidate for the presidential election (Financial Times, 2005). That the debate was dominated by national rather than European concerns was also demonstrated by the fact that both camps exploited the strategy of Anglo-Saxon bashing. While Chirac insisted that saying yes to the Treaty is saying no to the Anglo-Saxon liberalizing agenda, the No camp threatened that saying yes to the ‘pro-America British plot’ is saying yes to ultra-liberalism and surrendering to the invasion of the ‘Polish

plumbers’ and the ‘evil forces of globalization’. The No camp also cunningly equated saying yes to the CT with ‘saying yes to Chirac.’ As to the degree to which citizens perceived they had been informed, according to a survey conducted in November 2004, only 4% felt they were ‘very well-informed’, while 27% felt ‘very

poorly-informed’ (CSA Survey conducted on November 16-17, 2004). With regard to citizen interest in the debate leading to the referendum, 27% of the respondents said they were interested, while 71% were not (CSA Survey conducted on December 9, 2004). As the referendum approached, however, the interest level of the public did eventually pick up (Sofres Survey conducted between March and May 2005).

In the Netherlands, the campaign was noticeable for the ‘non-debate’. The inexperience of the government in running a referendum contributed to the underestimation of the efforts required to win the referendum (Harmsen 2005). A post-referendum survey shows that ‘lack of information’ (32%) was a far more important reason given by the ‘no’ voters than ‘fear of the loss of national

sovereignty’ (19%) for opposing the Constitution (Figure 12). To the extent that the debate did take place, the dissatisfaction and pessimism with domestic politics, stagnant economy, and the future of the society became the core concerns, while the CT per se received little attention (de Beus 2006). Even after the referendum

campaign, most citizens could be described only as ‘somewhat interested’ in

European affairs, with less than 4% saying they were ‘very interested’ (Aarts & van der Kolk 2006). Similar to the situation in France, all major parties (representing 85%

of parliamentarians), the employers association, the trade unions, and mainstream newspapers all stood behind the yes campaign, turning the referendum into a

confrontation between the Dutch political elite and citizens (The Economist, May 21, 2005).

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Figure 12: What are all the reasons why you voted ‘No’ at the referendum?

6%

6%

6%

6%

7%

8%

13%

14%

19&

32%

0 5 10 15 20 25 30 35

Opposition to further enlargement The draft goes too far / advances too quickly It will have negative effects on the employment situation in the Netherlands / relocation of Dutch enterprises / loss of

jobs

Europe is too expensive Loss of national sovereignty

Source: Flash EB 172

The results of the referendums demonstrate that, while it was hoped that the Constitution-making process could serve as a catalyst for creating solidarity among the citizens (Habermas 2001; Closa, Fossum, and Menéndez 2005), in the absence of an EPS, it is unrealistic to expect citizens to suddenly change their habits and become engaged the moment the political elites summon them to participate in a

European-wide debate. Given that a PS is where private people come together to reason, an EPS could be fostered neither top-down nor overnight. There is little wonder, then, that the one-shot attempt to create an EPS by bringing citizens onboard early on in the process of Constitution-making was unsuccessful. A document

produced with a high degree of ‘transnationalness’ and concerned with collective problems was, therefore, still tested by citizens in an almost exclusively nationalistic way.

IX. Conclusion:

The Constitution-making process has highlighted the problem that, even when the European elites tried all they could to engage the citizens and ask for their input and participation, when in place of a public sphere is a big vacuum, meaningful communication cannot take place in this black hole. The lack of a public sphere is a crucial feature that distinguishes the EU from any other democracies. While the problem of no EPS was made more visible during the Constitution-making process due to the “deliberative” nature of the process and the effort made to create a

Europe-wide debate, the absence of a public sphere is in fact a constant that has long been undermining the legitimating effects of democratic representation and regulatory state at the EU level. If the inevitable corollary of the findings of this paper is that policy makers should, as Commissioner Walstrom already have, begin to think about ways to facilitate the emergence of an EPS, that policy implication is not the initial goal of this paper. The initial aim of this paper was to simply point out the

discrepancy between what scholars have described the way democracy works in the EU, or have prescribed how it should work, and the failing of democracy in the EU given the blocking effects of the absence of a public sphere. Hence, even if it becomes clear that it is not possible—or desirable— for an EPS to emerge, the validity of this research is not undermined, since the focus of this paper is solely on the effects of not having a public sphere. That an EPS will never begin to form or become desirable will not change the fact that the legitimating effects of good institutional design for

democratic representation and of enhanced problem-solving capacity are being discounted due to the absence of a public sphere. For this reason, it seems difficult to foresee a reversal of the de-democratization process that has been inflicted by the integration process for a long time to come.

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