Lecture 1: The European Constitution in crisis
The EU constitution
● Does the EU have a constitution?
● The ‘Constitution Question’ and the ‘Federal Question’ are linked
The concept of constitution
● Does the EU have a constitution?
○ Different views:
a. Functional:
○ Is there a set of rules describing how powers are to be exercised in the
EU?
○ Yes → EU treaties
○ The EU has a constitution
○ Value-free definition
b. Normative:
○ Beyond functional definition of a constitution
○ Constitutional theory that demands certain requirements of what a
constitution should entail → before stating that something is a
constitution
○ What should a constitution be? Does the EU live up to this?
○ Is there a set of rules that is based on?
1. Separation of powers
a. Horizontal →
- separation of powers between institutions =
art. 13 TEU = institutional balance
b. Vertical →
- Between EU/MS → In principle yes
- Art. 6 TEU
- Not delineated well in the treaties!
2. Democracy
- Art. 10(1)(2) TEU
- EP powers + MS’ parliaments
- Citizens of the EU through EP
- → EU constitution based on elements of democracy and
has a primary position
3. Fundamental rights
- Art. 6 TEU →
- general principles of EU law
- ECHR accession
, - Charter FR → legally binding on EU institutions and MS
4. Rule of law
- One of the elements of a constitution is rule of law
- EU = based on rule of law = Art. 2 TEU → values of EU
- Art. 19 TEU → CJEU ensures application & interpretation
of treaties (1) + MS need to ensure effective legal
protection (2)
→ from a normative point of view = the EU scores well
- Ex: les Verts case (para.23) → Treaties constitutional
charter of the EU
But → What is the EU → An entity that is heavily interlinked with its component parts (MS)
Constitutionalism & federalism beyond the state:
● Federalism & the EU → a way to explain EU/MS relationship
○ But → federal = states = EU is NOT a state
○ EU → system based on self rule and shared rule with (at least) 2 levels of Government
who each operate on the basis of their own constitution
○ Can we move beyond federalism & states?
Semantics
● Original meaning of federal → foedus (means contract between sovereign states)
○ Federal → thus an international concept
○ Kant: states as contracting partners remain sovereign
○ Ex: first US constitution (1777)
● Now meaning = The second US constitution → 1787
○ Still in force today
○ Split the atom sovereignty → middleground between international & national
○ You can have 2 sovereigns on the same territory
○ Citizens subject to both at the same time
○ 1777 constitution → confederal
● The European tradition
○ American tradition (shared sovereignty) never got a stronghold in Europe
○ 19th century europe: obsession with indivisible sovereignty = sovereignty cannot be
split
○ Mixed forms were aberrations of nature
○ A state was either:
a. Federation: A federal state or a decentralised unitary state
b. A confederation → a creation of international law, not a state
,Critique based on democratic constitutionalism
● In federalism: peoples, sovereigns & constitutions may co-exist on the same territory
● Main thinking:
○ No european demos → so no constitution → no federal source of authority
○ All authority is from MS → EU has no sovereignty
○ Only one people = one sovereignty & one constitution
→ difference in viewpoints
solution: EU is a sui generis?
● Old European Tradition:
○ Either a state or a classic international organisation → or Neither?
● A non-theory
○ Negatively defining what the EU is not → it does not tell us what it is = problem
○ Schutze:
Shared rule: dual vs cooperative federalism
● All federal systems are unique, but 2 doctrinal families:
1. Dual federations
○ Strict separation of powers of legislative & executive functions
○ Emphasis is not on shared rule
○ Ex: Belgium + US
2. Cooperative federations:
○ Separation of powers is less strict
○ States are actors in centre → part of the power game = protects their interests
○ Legislative, executive & judicial functions are shared
○ Ex: Germany & EU
● Cooperative federalism in the EU
○ How institutions are shared
○ Shared democracy?
■ Yes: Art. 10 TEU: representative democracy, at union level (EP ) and at MS level
■ No: Bundesverfassungsgericht: EP can be no substitute for national parliament
○ Minister's → national function & EU function
○ National parliaments → role in legitimising the EU
○ Shared judiciary?
■ National & EU mandate for every national court
■ Making sure that the EU law is safeguarder in MS
The EU rule of constitutional law & its challenges
● A founding principle of EU law → art. 2 TEU
, ○ EU values
○ EU institutions → must comply with EU law
○ MS → as primary actors must also comply with rule of law (art.49 TEU)
■ Access to independent courts
Significance of the rule of law in the EU
● Very important → essential & foundational value of the EU
○ intra -EU → absolute sense of EU law = EU law always rules
● Role of rule of law in EU integration
○ Essential in peace project
○ Historically → CJEU considers integrity of EU law as essential for the integrity of the EU
○ Van Gend & Loos + Costa Enel
■ Only EU law can rule the EU
● Case les Verts
○ Treaties → as constitutional charter of the EU
○ EEC → community based on rule of law
The rule of law in legal theory
● Formal vs substantive conception of the rule of law
1. Formal/minimalist conception
- Does the rule of law only demand public power to be legally circumscribed,
predictable, exercised through clear procedural requirements and reviewable
by courts?
- Does not say anything about the law itself
2. Normative conceptions
- Does the rule of law also demand public power to conform to substantive
standards of democracy & human rights?
→ from formal conceptions to substantive concepts
→ from left to right more protection, social justice etc
→ Rule by law = public power (courts, state,government) must be exercised through legal instruments
→ which one is applied in EU law?
● Art. 2 TEU → Rule of law listed separately
The EU constitution
● Does the EU have a constitution?
● The ‘Constitution Question’ and the ‘Federal Question’ are linked
The concept of constitution
● Does the EU have a constitution?
○ Different views:
a. Functional:
○ Is there a set of rules describing how powers are to be exercised in the
EU?
○ Yes → EU treaties
○ The EU has a constitution
○ Value-free definition
b. Normative:
○ Beyond functional definition of a constitution
○ Constitutional theory that demands certain requirements of what a
constitution should entail → before stating that something is a
constitution
○ What should a constitution be? Does the EU live up to this?
○ Is there a set of rules that is based on?
1. Separation of powers
a. Horizontal →
- separation of powers between institutions =
art. 13 TEU = institutional balance
b. Vertical →
- Between EU/MS → In principle yes
- Art. 6 TEU
- Not delineated well in the treaties!
2. Democracy
- Art. 10(1)(2) TEU
- EP powers + MS’ parliaments
- Citizens of the EU through EP
- → EU constitution based on elements of democracy and
has a primary position
3. Fundamental rights
- Art. 6 TEU →
- general principles of EU law
- ECHR accession
, - Charter FR → legally binding on EU institutions and MS
4. Rule of law
- One of the elements of a constitution is rule of law
- EU = based on rule of law = Art. 2 TEU → values of EU
- Art. 19 TEU → CJEU ensures application & interpretation
of treaties (1) + MS need to ensure effective legal
protection (2)
→ from a normative point of view = the EU scores well
- Ex: les Verts case (para.23) → Treaties constitutional
charter of the EU
But → What is the EU → An entity that is heavily interlinked with its component parts (MS)
Constitutionalism & federalism beyond the state:
● Federalism & the EU → a way to explain EU/MS relationship
○ But → federal = states = EU is NOT a state
○ EU → system based on self rule and shared rule with (at least) 2 levels of Government
who each operate on the basis of their own constitution
○ Can we move beyond federalism & states?
Semantics
● Original meaning of federal → foedus (means contract between sovereign states)
○ Federal → thus an international concept
○ Kant: states as contracting partners remain sovereign
○ Ex: first US constitution (1777)
● Now meaning = The second US constitution → 1787
○ Still in force today
○ Split the atom sovereignty → middleground between international & national
○ You can have 2 sovereigns on the same territory
○ Citizens subject to both at the same time
○ 1777 constitution → confederal
● The European tradition
○ American tradition (shared sovereignty) never got a stronghold in Europe
○ 19th century europe: obsession with indivisible sovereignty = sovereignty cannot be
split
○ Mixed forms were aberrations of nature
○ A state was either:
a. Federation: A federal state or a decentralised unitary state
b. A confederation → a creation of international law, not a state
,Critique based on democratic constitutionalism
● In federalism: peoples, sovereigns & constitutions may co-exist on the same territory
● Main thinking:
○ No european demos → so no constitution → no federal source of authority
○ All authority is from MS → EU has no sovereignty
○ Only one people = one sovereignty & one constitution
→ difference in viewpoints
solution: EU is a sui generis?
● Old European Tradition:
○ Either a state or a classic international organisation → or Neither?
● A non-theory
○ Negatively defining what the EU is not → it does not tell us what it is = problem
○ Schutze:
Shared rule: dual vs cooperative federalism
● All federal systems are unique, but 2 doctrinal families:
1. Dual federations
○ Strict separation of powers of legislative & executive functions
○ Emphasis is not on shared rule
○ Ex: Belgium + US
2. Cooperative federations:
○ Separation of powers is less strict
○ States are actors in centre → part of the power game = protects their interests
○ Legislative, executive & judicial functions are shared
○ Ex: Germany & EU
● Cooperative federalism in the EU
○ How institutions are shared
○ Shared democracy?
■ Yes: Art. 10 TEU: representative democracy, at union level (EP ) and at MS level
■ No: Bundesverfassungsgericht: EP can be no substitute for national parliament
○ Minister's → national function & EU function
○ National parliaments → role in legitimising the EU
○ Shared judiciary?
■ National & EU mandate for every national court
■ Making sure that the EU law is safeguarder in MS
The EU rule of constitutional law & its challenges
● A founding principle of EU law → art. 2 TEU
, ○ EU values
○ EU institutions → must comply with EU law
○ MS → as primary actors must also comply with rule of law (art.49 TEU)
■ Access to independent courts
Significance of the rule of law in the EU
● Very important → essential & foundational value of the EU
○ intra -EU → absolute sense of EU law = EU law always rules
● Role of rule of law in EU integration
○ Essential in peace project
○ Historically → CJEU considers integrity of EU law as essential for the integrity of the EU
○ Van Gend & Loos + Costa Enel
■ Only EU law can rule the EU
● Case les Verts
○ Treaties → as constitutional charter of the EU
○ EEC → community based on rule of law
The rule of law in legal theory
● Formal vs substantive conception of the rule of law
1. Formal/minimalist conception
- Does the rule of law only demand public power to be legally circumscribed,
predictable, exercised through clear procedural requirements and reviewable
by courts?
- Does not say anything about the law itself
2. Normative conceptions
- Does the rule of law also demand public power to conform to substantive
standards of democracy & human rights?
→ from formal conceptions to substantive concepts
→ from left to right more protection, social justice etc
→ Rule by law = public power (courts, state,government) must be exercised through legal instruments
→ which one is applied in EU law?
● Art. 2 TEU → Rule of law listed separately
