EU Constitutional Re-Design

The EU treaty deserves an update in which the principles and institutions of the democratic rule of law, open society, and human rights become anchored in it's constitutional core. There should be more focus on the direct protection of citizens’ rights, freedoms, and security of livelihood, as well as protection against domination resulting from imbalances in social, economic, cultural, and other forms of power. The EU being there more for the citizen and less for the member states. A format more in line with the Polder principles and the Rhineland model, and less a technocratic, bureaucratic fire brigade.

Enforcement should take place more through — and on the advice of — independent “watchdogs,” and through simple or qualified majorities, making enforcement less political. There should be the possibility to limit EU rights of member states that do not commit to these principles. (Authoritarian parties should not be able to access the levers of power of the EU — or its member states.)

The European Union should be a pluralistic union of societies that stand for: democratic rule of law; a diverse and open society; human rights; individual freedom and human dignity; social and economic justice; and solidarity in the face of risks that no individual or community can bear alone.

As Europeans, we are not bound by who we are (identity), but by how we deal with conflict, power, and vulnerability. As Europeans, we want to ensure that vulnerability does not become destiny.

ESSENCE of the EU

The European Union exists to secure peace, freedom, prosperity, and cooperation among the peoples of Europe by pooling sovereignty, upholding common values, and enabling countries to solve shared challenges together. It is a voluntary union of European democracies that seeks to preserve peace, protect freedom and human rights, promote prosperity, and address common challenges through cooperation under the rule of law. 

The EU's Mission and Objectives

The EU was originally created after World War II to help prevent future conflicts in Europe through economic and political cooperation. According to the treaty governing the EU, its aims include:

• Promoting peace, its values, and the well-being of its peoples.

• Providing an area of freedom, security, and justice without internal borders.

• Establishing a single market that enables the free movement of goods, services, people, and capital.

• Working toward sustainable development, balanced economic growth, and social progress.

• Combating social exclusion and discrimination.

• Promoting scientific and technological advancement.

• Protecting the environment and encouraging sustainable use of resources.

• Upholding its interests and values in the wider world.

Core Values of the EU

The EU's overarching purpose is to foster peace, prosperity, and cooperation among European countries while being guided by the values of human dignity, freedom, democracy, equality, the rule of law, and human rights. 

The EU's fundamental values are listed in Article 2 of the Treaty on European Union:

• Human dignity – Every person deserves respect and protection of their rights.

• Freedom – Including freedoms of expression, religion, association, movement, and personal choice.

• Democracy – Governments should be accountable to citizens through democratic processes.

• Equality – Equal treatment and equal opportunities regardless of gender, ethnicity, religion, disability, sexual orientation, or other characteristics.

• Rule of law – Everyone, including governments, is subject to the law.

• Human rights – Including the rights of minorities and protections against discrimination.

These values influence: EU legislation and court decisions. Requirements for countries seeking to join the EU. Foreign policy and international partnerships. Funding programs and development initiatives.

Much needed institutional upgrade

The EU treaty deserves an update in which the principles and institutions of the democratic rule of law, open society, and human rights become anchored in it's constitutional core. There should be more focus on the direct protection of citizens’ rights, freedoms, and security of livelihood, as well as protection against domination resulting from imbalances in social, economic, cultural, and other forms of power. The EU being there more for the citizen and less for the member states. A format more in line with the Polder principles and the Rhineland model, and less a technocratic, bureaucratic fire brigade.

Enforcement should take place more through — and on the advice of — independent “watchdogs,” and through simple or qualified majorities, making enforcement less political. There should be the possibility to limit EU rights of member states that do not commit to these principles. (Authoritarian parties should not be able to access the levers of power of the EU — or its member states.)

The European Union should be a pluralistic union of societies that stand for: democratic rule of law; a diverse and open society; human rights; individual freedom and human dignity; social and economic justice; and solidarity in the face of risks that no individual or community can bear alone.

As Europeans, we are not bound by who we are (identity), but by how we deal with conflict, power, and vulnerability. As Europeans, we want to ensure that vulnerability does not become destiny.

EU Constitutional Re-Design

The European Union is (or should be) a pluralistic union of societies that agree: to bind themselves by the rule of law and pluralism; to resolve conflict through democratic institutions; to protect the pluralistic open society, individual freedom and human dignity; and to collectively manage the risks that no person or community can carry alone.

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As Europeans, we are bound not by who we are, but by how we govern conflict, power, and vulnerability

As Europeans we want to make sure that vulnerability does not become destiny.

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Achieving such a Polder–Rhineland European Union would require a deliberate re-constitutionalization of the Union around: the rule of law based society and pluralism; social and econiomical fairness and safety; negotiated legitimacy; social embedding of markets, and the acceptance of slower but more durable forms of governance. This is not a technical challenge but a political choice: to move away from crisis-driven integration, technocratic efficiency, and legal resilience as substitutes for democratic ownership, and to restore shared meaning, responsibility, and collective risk management as the foundations of integration.

Since the 1980s, European integration has increasingly been justified and governed through the logic of market efficiency, emergency management, and rule-based enforcement, crowding out the softer — but essential —principles of the Polder and Rhineland traditions: deliberation, social partnership, mutual obligation, and institutionalized compromise.

Reversing this trajectory does not require a European superstate, a single welfare system, uniform taxation, cultural assimilation, or permanent debt mutualization. It requires a constitutional commitment to negotiated legitimacy, pluralism under the rule of law, and the collective protection of vulnerability within a diverse Union.

Willem de Vlaming, January 2026

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The need for a shared narrative

What the EU lacks is a shared narrative dealing with social cultural diversity within a overall binding framework based on the principles and institutions of democratic rule of law, pluralistic open society, and human rights, collectivising the risks of the vulnerable. The missing narrative is not about who Europeans are, but about how deeply diverse societies can bind themselves through democratic law, pluralism, and shared protection against vulnerability — not a national myth, but a constitutional-social narrative capable of holding deep diversity together.

> The EU does not need: A cultural identity, A shared language, A heroic origin myth, Emotional nationalism, Civilizational or religious unity. Those are nation-state tools, and they *collapse under European diversity*.

> The EU needs a constitutional-social narrative, similar to what Germany developed after 1949: We are bound not by who we are, but by how we govern conflict, power, and vulnerability 

Key characteristics of the narrative should be: normative, not ethnic; procedural, not symbolic; forward-looking, not nostalgic; grounded in lived protections, not abstract values. Embracing constitutional patriotism (Verfassungspatriotismus) not identity politics.

Existing EU narratives fail: 

> Peace project: Too historical, Abstract for younger generations; Does not explain how peace is maintained socially

> Single market / prosperity: Excludes those who feel economically insecure; Frames integration as competition, not protection

> Values rhetoric: Too moralistic, Selectively enforced, Not visibly connected to everyday life

> Ever closer union: Teleological, Technocratic, Empty of social meaning

None of these explain how diversity is governed fairly or how vulnerability is shared.

What a binding narrative for diversity could look like

The European Union is (should be) a pluralistic union of societies that agree to bind themselves by law, to resolve conflict through democratic institutions, to protect the pluralistic open society, individual freedom and human dignity, and to collectively manage the risks that no person or community can carry alone.

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We are bound not by who we are, but by how we govern conflict, power, and vulnerability

We exist to ensure that vulnerability does not become destiny.

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A. Diversity as a starting point, not a problem: The binding force is not culture, but law and institutions

> Cultural, social, and economic diversity is assumed and embraced, not overcome. There is no hierarchy of cultures, no enforced uniformity, no assimilation mandate.

B. Democratic rule of law as the common grammar: Disagreement is legitimate, arbitrariness is not.

> Not just courts and procedures, but: predictable governance, limits on power; accountability, legal equality

C. Pluralistic open society as a lived practice. This counters both authoritarianism and hyper-individualism.

> Pluralism means: protection of minorities; freedom of conscience and expression; space for social contestation; organized conflict (unions, NGOs, associations)

D. Human rights as minimum and shield: rights make freedom real.

> Rights are: non-negotiable, enforceable, prior to markets and states.

E. Collectivising risk for the vulnerable. This is the *missing moral core* today.

Europe exists to ensure that vulnerability does not become destiny.

This includes: illness, unemployment, economic shocks, climate transition, regional decline, social dislocation; and shared minimum protections; mutual support in systemic crises; prevention of social dumping. This does not imply uniform welfare states. 

--- Making the narrative real: institutional anchoring (A narrative only binds if it is experienced)

> From “solidarity” to “risk-sharing”: From charity → mutual insurance and shared exposure

> Visible institutions and rules of protection:  People must feel the Union when they are vulnerable.

>  Procedural fairness over outcomes. Fair rules, Negotiated solutions, Predictability (Even when outcomes differ nationally>

> Constitutional communication: 

>> Rights and protections explained in plain language. 

>> Court rulings framed as citizen protections. 

>> Institutions speaking less in moral terms and more in legal-social terms

--- This (non identity-based) narrative is realistic for Europe, because it: 

> Does not require emotional unity; does not erase national cultures; aligns with existing EU law; fits pluralistic societies; scales across enlargement.

The Design

How to construct a EU constitutional architecture that systematically applies the Dutch polder model and the German Rheinland (social market) model, while remaining consistent with rule of law, pluriform open society, human rights, and individual freedom.

# Shared normative foundations

Dutch polder model, Core traits:

> Consensus democracy, not majoritarianism

> Institutionalized dialogue between state, employers, unions, civil society

> Pragmatism, incrementalism

> Depoliticization of distributive conflict via negotiation

> Strong legal certainty and independent judiciary

German Rheinland (social market) model, Core traits:

> Ordoliberal rule-based economy (state sets framework, not outcomes)

> Co-determination (Mitbestimmung)

> Embedded capitalism (markets within social institutions)

> Federalism and subsidiarity

> Constitutional protection of dignity, freedom, and social rights

Overlapping principles: rule-bound governance; social partnership; pluralism and openness; checks and balances; individual freedom embedded in social responsibility.

These principles imply a consensual, federal, corporatist-pluralist EU: NOT a centralized state and NOT a technocracy.

DEFINITIONS

> Consociationalism is a political theory and system for stable democracy in deeply divided societies (ethnic, religious, linguistic) through elite power-sharing, grand coalitions, proportionality, mutual vetoes, and segmented autonomy, focusing on cooperation over majority rule to protect minority interests and maintain peace, as seen in countries like Switzerland and Belgium. Developed by Arend Lijphart, it relies on leaders from different groups accommodating each other to prevent conflict and ensure inclusive governance. 

> Subsidiarity is the principle that decisions should be made at the most local or immediate level possible, with higher authorities only stepping in when lower levels can't effectively handle an issue, ensuring governance stays close to the people it affects. It emphasizes that larger bodies (like national governments or the EU) shouldn't take over tasks that smaller, local entities (like communities or individuals) can perform efficiently.

> Ordoliberalism is a German economic philosophy advocating a strong state to establish and enforce rules for a competitive free market, balancing economic freedom with social justice, distinct from pure laissez-faire or state planning, and forming the basis for Germany's "Social Market Economy" (Soziale Marktwirtschaft). It emphasizes a framework of rules (Ordnungspolitik) to ensure fair competition, price stability, and prevent monopolies, allowing markets to function efficiently while ensuring social well-being.

#. Constitutional structure: a “Consociational Federal Union”

A. Constitutional nature of the EU:

Federal Union of Peoples and States, based on consensus democracy, subsidiarity, and social market principles. 

Key constitutional clauses would include: supremacy of fundamental rights; binding subsidiarity (justiciable); social market economy as constitutional objective; requirement of negotiated governance in socio-economic policy; strong protection for individual and minority positions.

B. Sovereignty model (no pooled sovereignty or centralized sovereignty):

> Functional sovereignty: The EU acts only where collective rule-setting is essential. Negative integration at EU level (common rules). Positive integration primarily national or regional, unless consensus exists. This avoids both neoliberal deregulation and centralized redistribution.

#. Institutional architecture

A. European Council → Federal Consensus Council  (NEW?)

> Transformed into: A collective executive - legislative coordination body.

> Decisions require: Supermajorities, minority protection clauses, justification under subsidiarity review. This mirrors Bundesrat + Dutch cabinet culture.

B. European Commission → Ordoliberal Guardian Authority

> The Commission would become: Smaller, Less political, More rule-focused.

> Primary roles: guardian of treaties and constitutional order; competition policy; internal market rules; human rights enforcement; subsidiarity oversight. The Commission would not drive grand political projects without consensus.

C. European Parliament → Pluralist Chamber

> Reformed to: Represent political pluralism, not only party competition.

> Mixed representation: Citizens (direct election); transnational lists; no winner-takes-all logic; coalition-based lawmaking mandatory

The Parliament would not dominate; it would co-govern.

D. Council of the EU → Chamber of Functional Interests (NEW?)

> A key polder-style innovation: Becomes a tripartite socio-Economic council, embedded constitutionally.

> Composed of: governments, employers’ organizations, trade unions, recognized civil-society federations.

> Mandatory consultation and co-decision on: Labor law, social policy, industrial strategy, climate transition

This mirrors: SER (Netherlands) Sozialpartnerschaft (Germany).

E. Court of Justice → Constitutional Court of the Union

> Strengthened as: Explicit constitutional court.

> Competence to: Enforce subsidiarity, protect fundamental rights, strike down overreach by EU institutions

Closer to Bundesverfassungsgericht logic than current CJEU activism.

#. Decision-making logic: institutionalized consensus

A. No pure majoritarianism

> Qualified majority only after: Exhaustion of consensus procedures, Formal mediation rounds

> Minority veto on: Fundamental social arrangements Constitutional identity clauses

B. Negotiated legislation

> Legislation proceeds through: Technical proposal, Social partner negotiation, Parliamentary deliberation, Federal consensus review, Judicial subsidiarity check, Slow by design, but stable.

#. Economic governance: European Social Market Economy

A. Ordoliberal framework

> Strict rules against: Market dominance, State capture, Strong competition law, Independent regulators

B. Embedded capitalism

> EU-wide: co-determination of minimum standards; worker participation in large firms; sectoral bargaining frameworks; social dumping constitutionally prohibited.

C. Fiscal architecture > No permanent transfer union 

But: Counter-cyclical stabilization fund; Crisis solidarity under strict conditions; National welfare states remain primary.

This avoids both austerity dogma and centralized redistribution.

#. Human rights and individual freedom

A. Rights hierarchy

> Rights hierarchy: Human dignity as supreme principle (German model); Civil, political, social rights explicitly protected; Direct effect of Charter of Fundamental Rights

B. Pluriform open society

> Strong protections for: Freedom of expression, Religious and cultural pluralism, Academic freedom

> No enforced cultural homogenization

C. Rule of law enforcement

> Automatic legal mechanisms, not political discretion

> Judicial review instead of sanctions bargaining

> Funds legally conditional on compliance

# Democratic legitimacy

Legitimacy is not electoral alone, but multi-layered: Electoral (Parliament); Federal (Member states); Social (organized interests); Legal (constitutional courts); Deliberative (consensus procedures); This reflects Rhineland democracy, not Anglo-American adversarial democracy.

# How this differs from today’s EU

Area Current EU Polder–Rhineland EU

Decision-making Hybrid technocratic Institutionalized consensus

Commission Political-executive Rule-guardian

Parliament Majoritarian drift Coalition-pluralist 

Economy Market-corrective Embedded social market

Rights Politically enforced Judicially enforced

Speed Crisis-driven Deliberate & stable

#. Overall characterization

Such an EU would be best described as: A constitutional, federal, consensus-based union of social market democracies, designed for stability, pluralism, and negotiated solidarity rather than power accumulation or ideological uniformity.

It would be: Less dramatic, slower, more legally constrained, more socially legitimate, more resilient over decades

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Why did EU diverge from this model?

The EU diverged from a polder–Rhineland–style consensus union not because that model was unknown or impossible, but because historical timing, political economy, and crisis-driven institutional choices systematically pushed it in another direction. The divergence was contingent, not inevitable.

The EU diverged from a polder–Rhineland consensus model because market integration and monetary union were prioritized over social and constitutional integration, crisis governance replaced negotiated legitimacy, and enlargement outpaced institutional trust, producing a rule-heavy but socially thin union.

1. The original European project did start close to the Rhineland model

Post-war foundations (1950s–1970s)

Early European integration reflected Rhineland principles:

> Christian-democratic and social-democratic dominance

> Strong role for law and courts

> Embedded capitalism

> Corporatist consultation (especially in ECSC sectors)

> Incremental, consensus-based integration

The European Communities were:

> Regulatory, not redistributive

> Rule-bound, not politicized

> Built around market order + social compromise

This phase aligned well with Dutch and German institutional thinking.

2. First divergence: market integration without social federalism

The Single European Act (1986) This is the first major turning point.

Why it mattered:

> Prioritized negative integration (removal of barriers)

> Used Qualified Majority Voting to speed decisions

> Social policy remained largely national

> Consensus logic weakened in favor of efficiency

Underlying forces:

> Global competition (US, Japan)

> UK accession and liberal influence

> Stagnation of national corporatist models in the 1970s

Result:

> A powerful internal market without an equivalent social or corporatist layer at EU level.

This already departs from Rhineland logic, which insists that markets must be embedded.

3. Second divergence: Maastricht and monetary union without a political union

A. EMU as a technocratic shortcut

> Monetary union was introduced: Without fiscal union, Without social bargaining structures, Without democratic federal institutions

> This violates core Rhineland assumptions: No shared responsibility for macroeconomic adjustment, No collective wage coordination, No EU-level social partnership

> Why this happened: German reunification urgency, Political deal-making, not institutional coherence, Fear of full federalization, Overconfidence in rule-based governance

B. Ordoliberalism stripped of its social context

> What survived: Rules, Fiscal discipline, Central bank independence

> What was missing: Co-determination, Collective bargaining coordination, Social risk-sharing

This produced “disembedded ordoliberalism”, not the German model itself.

4. Third divergence: crisis governance replaces constitutional design

A. Eurozone crisis (2010–2015)

> Crisis response bypassed normal consensus mechanisms: Intergovernmental treaties; Emergency instruments; Executive dominance; Conditionality enforced politically, not judicially. > Key effects: Democratic and social legitimacy weakened; North–South moralization; Technocratic centralization; Crisis management logic crowded out polder-style negotiation.

B. Pandemic response was an exception — but temporary

> NextGenerationEU showed: That solidarity is possible but only framed as exceptional and time-limited, without permanent institutionalization. > This reinforced crisis exceptionalism rather than consensus federalism.

5. Fourth divergence: eastern enlargement without institutional deepening (2004–2007)

> Enlargement occurred: Without reforming decision-making, Without shared social models, Without strong rule-of-law enforcement mechanisms. > Result: Greater heterogeneity, More veto points, Weaker shared norms. Consensus democracy works best with thick trust and shared institutional culture, which enlargement outpaced.

6. Fifth divergence: judicial and technocratic substitution for politics

> When political consensus failed: Courts expanded their role; Commission became more political; Rules replaced negotiation. > This created: Legal integration without social consent; Perception of elite-driven governance; Populist backlash. A polder model needs institutionalized bargaining, not just law.

7. Structural reasons the EU could not easily stay on the polder–Rhineland path

A. Absence of a European demos

> Consensus models rely on: Shared narratives, long-term reciprocity, trust in institutions. The EU lacks this at scale.

B. Asymmetric economic models

> Member states diverged: Coordinated market economies (DE, NL, AT), liberal market economies (UK, IE); mixed and state-led models (South, East). No single social partnership template fit all.

C. Fear of visible power

> Member states preferred: Hidden integration, technocratic solutions, legal harmonization. 

> Consensus democracy is visible and political — which many governments resisted.

8. The result: a hybrid that satisfies no model fully

1) Too political to be purely technocratic; 2) Too technocratic to be democratic; 3) Too legalistic to be social; 4) Too fragmented to be federal.

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How to get there

Achieving a polder–Rhineland EU would not require a utopian leap or a single “founding moment”, but it would require a deliberate reversal of how integration has been justified, governed, and legitimated since the 1980s. The key challenge is not technical capacity, but political willingness to re-constitutionalize the Union around negotiated legitimacy instead of crisis efficiency.

Preconditions for a polder–Rhineland mode

> Shared diagnosis of failure: Member states would need to agree that: 1) crisis governance is unsustainable as default; 2) pure rule-based technocracy lacks legitimacy; 3) market integration without social embedding destabilizes democracy.

> Coalition of “coordinated economies”: Core drivers would have to be: Germany, Netherlands, Austria, Nordics, Benelux, Possibly France (conditionally).

Constitutional changes: re-founding without revolution

A. A limited constitutional convention Not a full federal constitution, but a Basic Law–style re-founding:

Key constitutional insertions: 

> Social market economy as binding principle

> Subsidiarity as justiciable law

> Mandatory social partnership in EU socio-economic policy

> Stronger fundamental rights enforcement

> Clarification of EU vs national competences

This would require: Treaty revision; National ratification; Possibly differentiated integration

B. Entrenchment of consensus democracy

> Explicit rejection of: Pure majoritarian federalism; Emergency governance as normal mode

> Constitutional requirements for: Supermajorities; Mediation phases; Minority protections

Institutional reconstruction: building EU-level “polders”

A. A European Social and Economic Council (ESEC) This is the keystone reform.

> It would: Be constitutionally recognized; Include governments, employers, unions, civil society

> Have co-decision rights in: Labor standards; Climate transition; Industrial policy; Social dumping prevention

Without this, “Rhineland Europe” is rhetoric only.

B. Rebalancing the Commission

> The Commission would: Lose agenda-setting monopoly; Gain stronger guardian role; Be legally constrained from bypassing social partners. This requires cultural change as much as legal change.

C. Judicialization of subsidiarity

> Strengthen national constitutional courts’ dialogue with the CJEU; Make subsidiarity violations actionable; Reduce politicized rule-of-law enforcement

Economic and social embedding

A. Repairing EMU along Rhineland lines (This is unavoidable.)

> Key elements: EU-level wage coordination forum; Minimum co-determination standards; Anti-social-dumping rules with teeth; Counter-cyclical stabilization capacity. This does not mean a transfer union, but it does mean shared adjustment responsibility.

B. Climate and industrial policy as social compacts

>Green transition policies must be: Negotiated sector-by-sector; Backed by social compensation; Implemented via collective agreements. This mirrors Dutch climate polders and German industrial consensus.

Political strategy: how to get there

A. Differentiated integration (A full EU-27 move is unrealistic at first.)

> Likely path: A “Consensus Core Europe”, Open to accession, Legally embedded, not informal. This avoids hostage-taking while preserving openness.

B. Re-legitimizing slowness

> Political leaders must: Defend deliberation as strength; Reject crisis rhetoric as default; Accept visible conflict resolution

This is counter-cultural after decades of speed-centric governance.

C. Re-politicizing social compromise, not identity 

> The model depends on: Material interests; Social bargaining; Legal certainty. 

> Not on: Cultural homogenization, Emotional federalism, Identity politics

What it does not require (important)

> It does not require: A European superstate; A single welfare system; Uniform taxation; Cultural assimilation; Permanent debt mutualization. This is often misunderstood.

Main obstacles

> Structural: Fragmented party systems; Weak EU-level social partners; Media nationalization

> Political: Governments benefiting from opacity; States using EU as blame-shifter; Populist veto strategies

> Institutional: Path dependence of EMU; Commission incentives; Crisis tools becoming permanent

8. Realism assessment

> Short term (5–10 years): Partial institutionalization possible; Social partnership in climate and industry likely; Stronger subsidiarity enforcement plausible

> Medium term (10–20 years): Differentiated consensus core feasible; EMU reforms along social lines possible; Constitutional entrenchment conceivable

> Long term: Full polder–Rhineland EU. Only if: Crisis governance delegitimizes itself; Coordinated economies reassert leadership; Citizens demand stability over speed.

9. Bottom line

Achieving a polder–Rhineland EU would require re-constitutionalizing the Union around negotiated legitimacy, embedding markets in social institutions, and accepting slower but more durable governance — a choice that is politically difficult but institutionally feasible.