European Constitution Research Articles

A European Constitution and European constitutional legal practice

Constitutions of countries and of major organisations such as the European Union (EU) are abstract documents yet they relate to fundamental issues and important sentiments among the population. The EU’s failed project to implement a European Constitution illustrates such sensitivities. Recently, David Cameron, the Prime Minister of the United Kingdom (UK) delivered a speech in which he criticised fundamental aspects of the EU, such as the broad powers of the EU and the need for greater flexibility. The main issues of contention relate to the mode and scope of constitutional governance in the EU. In particular, the opinion of the general population is that EU governance is far removed from the needs of the public. The economic crisis has increased the magnitude of such public sentiments especially after the EU was forced to intervene in order to save indebted countries and banks. These measures have not only led to criticism in the countries concerned but also within the rest of the EU. In the countries concerned, it was felt that the EU (and the European Central Bank and the International Monetary Fund) forced them to accept drastic rescue measures contrary to the concept and practice of state sovereignty. In other EU countries having more robust economies it was felt that they were called upon to rescue other states and banks that had irresponsibly spent money and undertook unwise fiscal policies. Essentially, this debate is a constitutional debate. The issue impinges upon the solidarity of the entities that make up the EU. Of major concern is how to make transparent, well designed policies that are put into practice. Adequate structures, mechanisms, supervision and legitimacy are paramount to successful democracy and constitutional governance.

Nothing to be done about them without them: The Slovenian National Police and Roma joint-training program

This research contributes to police policy formation aiming to confront Roma social and political exclusion in Europe. Since Roma are technically protected by European national constitutions, as well as by the European Convention on Human Rights and Fundamental Freedoms and other human rights declarations, how Roma are handled by national governments, and in particular the police who may regularly encounter them in daily life, becomes an important part of whether the promises of democracy and multiculturalism can be achieved in actuality. This research outlines promises and challenges faced by a unique Slovenian joint-training program and suggests that a program which leverages relationships with the diverse communities that are Roma-identified can have benefits beyond merely educating police officers. The main methodologies used to document and asses the training program and its community effects were police focus groups and semi-structured interviews with past participants in the program, from both the Roma and non-Roma communities, as well as semi-structured interviews with other community stakeholders. The research shows that increased confidence in the police and community problem solving and dialogue may be attributed to a police focus on Roma-related joint training.

Borderless Market legislation practice in EU and USA: Competence of central authorities in the federal model

Both the EU and the USA have a federated structure with some competencies and responsibilities resting at the central level, some resting with the state governments. Both systems subscribe to a constitutional principle of enumerated powers under which, in order for powers to belong properly to the federal level, they need to have been enumerated as such. The United States Constitution centralized the government with all due respect to a relationship between central government and the state level (amendment X of the U.S. Constitution2). In this study, the current American federal model will be compared to the model of governance in Europe which might be considered to be developing towards a federal system. This system essentially implies the supremacy of the (respective) constitution and, indeed, all the hallmarks of American federalism are included in the European Constitution. The Single Market encompasses the respect for EU basic legal principles, subsidiarity and proportionality (Article 5 TEU). However, the European Constitution remains problematic in the European Union. The 2004 attempt to pass the Constitution turned out to be a failure and slowed down further political integration. Constitutional issues will also be discussed from the judiciary point of view which is to be confronted with political aspects. The important question to be addressed here is the role of judicial control in the process of creating a coherent doctrinal framework. The question whether the legislative acts are immune from legislative review provided that matter falls within the Treaty competences conferred on the EU by the Member States, or in the U.S. Constitution respectively, will be examined.

Who is the Guardian for Constitutionalism in Europe after the Financial Crisis?

This discussion of the ECJ in the context of a project on political representation in the EU responds to the Court’s changing functions in the integration process and also to the critique which the exercise of this function has provoked in recent years after the Court objected to constitutional provisions and legislation of constitutional status in particular in the sphere of labour law and social protection. The ECJ has been accused of partisanship with a neoliberalmonetarist agenda. These debates are bound to extend to the new functions which were assigned to the CJEU in the supervision of the budgetary discipline of Member States in the Euro zone. The problems that might arise in such a case have been foreshadowed by the recent jurisprudence on the legality of the European practices of crisis management. The judgments of the German Bundesverfassungsgericht of 12 September 1212 on the ESM Treaty and the Fiscal Compact and the CJEU Judgment of 27 November 2012 in the Pringle case are of exemplary importance. They document the difficulties both courts have with the defense of the autonomy of law against apparent functional necessities and concurring attitudes in the readiness to accept the primacy of the political.

Human Dignity in Europe: A Foundational Constitutional Principle

Human dignity has become one of the central issues in the international discussion of human rights and constitutionalism. It attracted special attention with the celebration of the sixtieth anniversary of the 1948 Universal Declaration of Human Rights adopted by the United Nations and, more recently, scholars have sought to explore human dignity's legal meaning in more theoretical terms, as well as to survey and catalogue its different manifestations across a number of legal systems worldwide. This article contributes to the international debate about human dignity's legal significance by focussing on another dimension, namely the ways in which the concept is understood and used in European constitutionalism, where it has been deployed since the end of World War II and its importance has become undisputed.

European constitutions, laws and austerity

European constitutions, laws and austerity

Book Review: Europe: The Worlds of European Constitutionalism

Book Review: Europe: The Worlds of European Constitutionalism

Fiscal Bicameralism: the Core of a EU Constitution

The present approach to what steps to take as a result of the rejection of the proposed European Constitution is almost guaranteed to be a very toilsome process inside the realm of partisan advocacy. Moreover the approach is almost irrelevant in terms of both explanatory content and normative potential. There is another way: fiscal constraints. Instead of streamlining existing EU Treaties, and giving more room for majority voting, it would be better to shift the emphasis to the making of authentic fiscal rules. The paper is based on the idea that the EU is not a benevolent despot but a Leviathan; shifting the grounds of the discussion to the question of within which constitutional framework should the EU’s fiscal powers be exercised. A separation of fiscal powers, fiscal bicameralism and a sharp border between tasks of the EU and its members seems to be required. The method used cannot be empirical. There is a clear difference between our empirical knowledge of decision-making within a given framework and discussions about the framework itself. In the wake of the demise of the Constitution a model fiscal constitution for the EU budget can become an agenda-setting focal point for a new research program and future EU policy.

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.

Europe on the measure of the strong

From the very beginning the steps towards unification of European countries have been founded on the personal incentives of politicians, but not on broad democratic agreement of the people. That method has never been abandoned: even the huge administrative apparatus in Brussels that makes important decisions without any democratic control could be seen as natural consequence of such praxis. It is just because of such political behaviour where important political documents and decisions are made out of the eyes of the public, which the great political incentives, such as referendum on the European Constitution, have failed. If we ask ourselves where it has gone wrong the possible answer is that EU has been made according the needs of the rich and mighty countries. The states that are located on the periphery of EU have no political influence on the main decisions, and cannot decide about their own economic development. They are simply forced to adapt ourselves to the interests of the most advanced. But the protests all over EU show that the general economic concept of the EU is wrong and that it will generate crises in the long run.

Constitution without demos: Why does the European Union already have a constitution

When in 2007, after the rejection of the Constitution for Europe in France and the Netherlands, European politicians defined their mandate to work on the Reform Treaty, they explicitly promised that 'the constitutional concept is ... abandoned' and that 'the Treaty of European Union and Treaty on Functioning of the Union will not have a constitutional character.' In its Maastricht and Lisbon decisions, the German Federal Constitutional Court concluded that the European Union did not have a constitution since it did not have demos. The main purpose of this article is to prove the opposite. Accepting Weiler's argumentation that the EU is a political messianic venture par excellence, the author claims that, in addition to pursuing messianic goals, Europe's political elite has for a long time been streaming to root Political Messianism into democracy and position the EU in the global world. The main vehicle to transform the Community/Union from an international to a constitutional legal order has been constitutionalism. Starting from the French revolutionary Declaration, which declared civil rights and in Article 16 proclaimed 'a society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all,' the author has showed that the Union has an antirevolutionary, uncodified and evolutive constitution, whose elements are to be found in the Lisbon Treaty and its related documents, the jurisprudence of the European Court of Justice, and to some extent in the constitutional orders of the Member States. The European constitution does not mirror a national constitution in the sense that it is attributable to the people, nor it is a revolutionary product aimed at limiting the government in the name of individual freedom. It is a rule of law-oriented type of constitution, born in the process of constitutionalization and aimed at submitting public power to law on the Union level. From the perspective of modern constitutionalism, the quality of this constitution is a matter of concern, since it has managed to connect the rule of law with the protection of human rights, but has failed to do the same with regard to democracy. Despite some efforts to entrench the democratic principle in the Lisbon Treaty, the present crisis in the Union is to a great extent the result of this failure. The fact that democratic defects at the Union level appear less visible when pitted against the state of affairs in national constitutional systems cannot mitigate this failure. Yet, assuming that the EU will survive the present crisis and having in mind that the Union is 'work in progress', the issue which still remains open is whether the future efforts to eliminate the defects of the European Constitution should be tied to traditional ways of thinking about democratic accountability within nation states, or one should stop thinking in terms of a Westphalian nation-state, and accept that transnational systems can provide a cure for democratic failings in ways that differ from traditional postulates of democracy.

The Politics of Avoiding Referendums on the Treaty of Lisbon

After the defeat of the Treaty Establishing a Constitution for Europe (TCE) in the French and Dutch referendums, governments across Europe had little appetite for popular votes on the Lisbon Treaty. Indeed, nine of the ten countries which were committed to (or had held) referendums on the TCE got around such votes on Lisbon. The article investigates how it was possible for governments in these nine countries to avoid putting the treaty to the people despite the precedent set by the TCE. It will be argued that three factors were crucial in this regard: first, the European-level collusion between governments; second, domestic political changes during the ‘period of reflection’: and third, governing strategies of depoliticising the decisions against referendums. Thus, the politics of avoiding referendums could only succeed due to the interplay between the determined agency of governments at the European and domestic levels and auspicious domestic contexts of ratification.

Europa in der Krise

The European Union today finds itself in the midst of its greatest crisis. The crisis is due not only to one of the greatest breakdowns in the history of the global economy, but also to the fascinating internal evolution of the European constitution since its beginning, shortly after World War II. Parallel to the growth of constitutional law, latent legitimation problems began to arise and grow cumulatively. However, once the big global banks, corporations and hedge-funds began a concerted attack on the European periphery, the long lasting neoliberal turn from democratic capitalism to capitalist democracy has reached whole Europe, and the legitimation crisis becomes manifest.

The Tangled Complexity of the EU Constitutional Process: The Frustrating Knot of Europe

1. Only a Drop in the Ocean? An Attempt to Classify the Debate About the Notion and the Nature of the European Constitution 2. Dealing with Constitutional Theories Of European Integration 3. Constructivism and Evolutionism In The Last Twenty Years of (Mega) Constitutional Politics in the EU 4. Complexity in Action: From The Structure to the Actors 5. On The Future of Constitutional Conflicts

Europe and Christianity: from yesterday to tomorrow

Is Europe Christian or not? This was the question that dominated some time ago the intense discussion duringthe working-out of the European Constitution. Two were the contrasting standpoints, one affirmative and one negative, which in turn set off a lot of contending. The final outcome was a suppression of the whole issue as far asthe constitutional document is concerned, and an indirect reference to the humanistic legacy of Europe; a reference incorporated within the preamble of the ultimate constitutional chart of the European Union – which, of course, isstill in the voting process.

Europa i chrześcijaństwo: historia i przyszłość

Is Europe Christian or not? This was the question that dominated some time ago the intense discussion duringthe working-out of the European Constitution. Two were the contrasting standpoints, one affirmative and one negative, which in turn set off a lot of contending. The final outcome was a suppression of the whole issue as far asthe constitutional document is concerned, and an indirect reference to the humanistic legacy of Europe; a reference incorporated within the preamble of the ultimate constitutional chart of the European Union – which, of course, isstill in the voting process.

La ciudadanía de la Unión Europea: novedades desde Lisboa y Luxemburgo

El Tratado de Lisboa, Siguiendo la fallida Constitución Europea, ha introducido un nuevo título II en el Tratado de la Unión Europea, llamado "disposiciones sobre los principios democráticos" que parece completar las ya existentes disposiciones sobre la ciudadanía europea. Una nueva concepción del ciudadano europeo se empieza a dibujar, distinta de la hasta ahora conocida. Además, la recién Jurisprudencia del Tribunal de Justicia de la Unión Europea ha reforzado a su vez la ciudadanía europea que aparece cada día más como el "estatuto de los nacionales de los Estados miembros", incluso en situaciones puramente internas.

If they really wanted to, they would

This study explores the solidification of the discourse of integration of the Gypsy/Roma in the European press following the fall of Communism. A discourse analysis focuses on the British and Romanian press between 1990 and 2006, and it suggests that, in the midst of opening of EU borders and talks of a European Constitution, the idea and necessity of integration grew in political popularity as a means to peaceably alleviate interethnic conflict. However, the discourse of integration has continuously shifted between assimilationist voices and projects that attempt to change the Gypsy other into a non-Gypsy, on the one hand, and human rights-inspired defense and advocacy for the Roma, on the other. This article further suggests that the press does more than confirm stereotypes; instead, uncertainties, contradictions, and changes mark press writing.

Arguments for a Holistic Approach in European Constitutionalism: What Role for National Institutions in Avoiding Constitutional Conflicts between National Constitutions and EU law

Relation between national constitutions and EU law – Constitutional conflict – Role of national institutions in avoiding constitutional conflict – A need for a holistic approach in European constitutionalism – Constitutional courts put forward constitutional requirements next to constitutional reservations – The need to bring constitutions in line with EU law before accession – The role of parliaments and governments in avoiding conflict when implementing EU law – Role of national institutions in decision-making at EU level

Constitutionalism and experimentalist governance

AbstractThis comment explores how experimentalist governance is connected to wider constitutional questions and makes two claims. First, there are good reasons to believe that experimentalist governance can only flourish in a world where the precepts of liberal democratic constitutionalism have been widely accepted and institutionalized. Experimentalist governance is part and parcel of the world of liberal democratic constitutionalism. Second, it is not only governance in Europe that can be described in experimentalist terms. The concept is also useful to describe the dynamics of European constitutionalism.