A Constitution Like Any Other? Comparing the European Constitution with Nation State Constitutions

Abstract

The Treaty of Lisbon is analyzed as the constitution of the European Union drawing on the tools of constitutional economics. It is shown that (i) the increased number of policy areas to which the newly created ordinary legislation procedure will be applied is likely to lead to more legislation. (ii) The creation of a president of the European Council will not make the Union presidential. (iii) The subsidiarity principle in combination with the monitoring competence of the national parliaments is unlikely to create an important brake to ever more centralization. (iv) Since citizens’ initiatives do not have any formally binding effects, they are unlikely to have any such effects factually. (v) The Charter of Fundamental Rights gives the ECJ yet another tool to enhance its influence which it is expected to use. (vi) The possibility of exiting from the Union is unlikely to change much, as the Union could not have prevented any member state from exiting even before. (vii) The tremendous hurdles to explicitly change the constitution in combination with the large number of memberstates further re-enforce the influence of the ECJ. It is further discussed whether the allocation of competences can be said to have created a “new separation of powers.