EU Constitutional Models in 3D: Differentiation, Dominance and Democracy

Abstract

A key question facing the distinctly differentiated EU is the following: under what conditions is differentiation conducive to democracy, and under what conditions is differentiation pathological and associated with dominance? The purpose of this research paper is to address that question with reference to establishing the most appropriate constitutional model for the EU. Such a constitutional model must on the one hand enable us to make sense of the EU, and on the other hand help us to establish the conditions under which differentiation is conducive to democracy, as well as the conditions under which it is not. The focus here is on what we may term the differentiation-democracy configuration: how the principles of democracy and differentiation are entrenched and combined in the institutional-structural arrangements that are normally embedded in the constitution. I first specify a set of EU-related challenges that any effort at devising a constitutional model for the EU will have to confront. Thereafter, I develop a set of benchmarks or criteria for assessing each model in order to explicate how the model understands democracy and differentiation, and to show how the phenomena that these terms designate are related. This unpacking exercise yields four differentiation-democracy dimensions (decisional or law-making differentiation; competence-based functional differentiation; territorial differentiation; and citizens’ rights and incorporation differentiation). Thereafter, I undertake a brief reality-check by asking how these four dimensions are configured in post-war Europe. That provides us with a set of ‘stubborn facts’, not the least pertaining to who sets the terms for today’s European differentiation-democracy configuration(s) and what these terms are. All constitutional models must relate to those facts if they are to work for the EU. The last section specifies and assesses three constitutional models, a cosmopolitan, an intergovernmental and a federal model.