Fit for All Practical Purposes? Constitutionalism as a Legitimising Strategy for The European Union

Abstract

How appropriate is the concept of constitutionalism in the context of the European Union? The fact that theories on constitutionalism have been developed in the context of nation states proves to be no obstacle for their application to the European Union. A relevant argument in this regard is that constitutionalism concerns the legitimacy of public authority, which is also highly important with regard to the European Union. Many authors have used constitutional theories to come to a better understanding of the nature of the European Union. To describe the European Union in terms of a constitutional order in which both states and citizens participate is already an improvement over describing it as a sui generis entity. That being said, however, it must be noted that EU constitutionalism is a notion that is likely to cause confusion. Concrete interpretations of constitutionalism and the actual ubject of analysismay differ. Some may interpret constitutionalism in the sense of the coherence of the legal order (as is the case of the literature on the ‘depillarisation’ of the European Union), while others think of fundamental rights protection, separation of powers or the relationship between the national and European legal orders. Obviously, this affects the subject of analysis as well. The pillar structure, the institutional balance and the relationship between the European Court of Justice and national courts may all be subjected to constitutional analysis. Moreover, the concept of constitutionalism may be used in a normative and in a descriptive way. The concept of constitutionalism, thus, seems to have multiple purposes, yet the constitutional vocabulary is often used in a self-explanatory way. It would therefore be a good custom to ensure in the academic debate, as well as outside of that context, that constitutional notions are always made concrete and explicit, especially in the light of the descriptive and normative dimension. The distinction between these two dimensions is also blurred in practice. The normative interpretation of constitutionalism provides a rich source for legitimating the functioning of the European Union. In this sense, the lack of a normative framework for the European Union, as a result of focusing too much on its unique, sui generis nature, may be easily overcome. An interesting perspective on EU constitutionalism is the role of national constitutional structures. Letting go of a hierarchal perspective on EU constitutionalism makes it possible to focus on independent national contributions to the European constitutional order. Developments in legal and political practice are highly dynamic, and the Treaty of Lisbon provides a new incentive for a change of focus, for example towards the role of national parliaments. However, comparative constitutional perspectives still have a lot to reveal in terms of how national structures may contribute to the legitimacy of the EU constitutional order.