European Constitution Research Articles

Foreword: The changing landscape of European constitutionalism

Foreword: The changing landscape of European constitutionalism

Tourism In European Union Law

Tourism is a very important economic sector within the European Union, while also playing a key role in political, social and cultural integration. Nevertheless, the EU took a late interest in this sector, beginning only in the 1980s. Starting then, EU intervention in matters of tourism began to pass through a series of phases, during which EU performance was alternately more or less intense. A study of these phases reveals the consequences of a certain inefficiency as a result of the lack of sufficient legal support in the European Constitution for the development of a real EU policy in this sector. With the arrival of the 21st century, and as new EU powers in matters of tourism have been incorporated into the Lisbon Treaty, performance by the European Union in the tourism sector has changed its perspective, putting quality and competitiveness within reach through sustainability in the sector, a basic element of performance in matters of tourism.

Kingdoms, republics and people's democracies: legitimacy and national identity in European constitutions

This article uses constitutional texts to explore the models of national identity which elites in European states have apparently wished to endorse. It analyses three types of constitutions – of constitutional monarchies, democratic republics, and former revolutionary communist states – to establish how the primary principle of legitimacy is identified, and how the concept of ‘the people’ is understood. It concludes that these issues evoke a different response in the three types of constitution, suggesting a surprising survival of the implications of the monarchical-republican distinction, and a brief flowering of at least the principle of international proletarian solidarity in communist constitutions.

From uneasy compromises to democratic partnership: The prospects of central European constitutionalism

The Central European countries have been constitutional democracies for two decades. They were created by the political and constitutional transition of 1989, which was based upon the acknowledgment of fundamental rights and the rule of law. Timothy Garton Ash has argued that the peaceful, negotiated regime changes in Central Europe established a new model of non-violent revolution. The year 1989 became the major historical reference point for this kind of change. However, more than twenty years later, in the light of antidemocratic, authoritarian and intolerant tendencies, it is far from clear whether the negotiated revolution is a story of success or failure. This paper first outlines the constitutional and political background of revolutionary transition. It shows that uneasy compromises with members of the ancien régime were an unavoidable part of the peaceful transition. Nevertheless, the achieved constitutional structures and rules do not prevent political communities from realising the full promise of democracy. Second, this analysis attempts to explore, through the use of examples, how the century-old historical circumstances, the social environment, and the commonly failed practice of constitutional institutions interact. The goal of this section is to highlight some of the differences between universal principles and local peculiarities, focusing particularly on the constitutional features of presidential aspirations, the privileges of churches and certain ethnic tensions. The way the authorities apply the constitution is not detached from place and time, since those authorities possess culturally and historically predetermined knowledge and premises. Thus, we can say that antidemocratic, authoritarian and intolerant political and legal tendencies are embedded in the past and present of political communities. Finally, the paper argues that the chances of success of liberal democracies depend significantly on extraconstitutional factors. It seems that Hungary is in a more depressing and dangerous period of its history than for example Poland. The future of Central European constitutional democracies relies on the actions of people in the countries concerned and the commitment of Western societies.

Intergovernmentalism or Functionalism? Foreign Policy in the European Union after the Lisbon Treaty

Neo functionalism and its consequential foundations in the study of unity and the integration of nation-states in a non-coercive way have played a major role in the formulation of integration-oriented theories of governance. The European Union (EU) as a functional establishment has traveled a long trajectory from its initial economic cooperation programs to social and political harmonization schemes as well. Intergovernmentalism as a decision making factor by Member States has created a new source of balance and stability throughout the European Union. The Lisbon Treaty, with the new identity that it created after the failure of the European Constitution has been comprehensive in its approach to all procedures and rules of the former treaties of the community. That treaty has renewed the EU with major changes in foreign policy and has granted more power to the European Parliament. In general, the connection between the European Council and the supranational sections of the EU have originated more influence for individual states to enforce their own interests rather than working for collective gain. The establishment of the High Representative as executive power in foreign policy (CFSP) is moving toward the intergovernmental territory which takes the EU away from their functional abilities and it reduces the principle of community-oriented functions to constructive power building by the political interests of different Member States.One might ask 'are the European Union and its own functional regional institutions repositioning themselves as intergovernmental establishments?' The Lisbon Treaty as a general agreement in between twenty seven Member States is now finding new perception to balance these supranational and intergovernmental sectors together. With no measurements available to control the level of each section, with the exception of the European Parliament, the separation of authority of the European governing body can therefore influence intergovernmental activities and reduce the supranational nature of integration. How new developments form the future of foreign policy of the European Union will remain a question, perhaps metamorphosing and progressing to continue internally and externally affecting the European Union and its decision making process.

The Economic Constitution Among European Constitutions

The paper starts from the (hypo)thesis, that European constitutionalism should be examined as a diversified process where each stage receives its particular colouring from a particular constitution (or constitutional dimension). Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution; in the second phase, the emphasis shifted to juridical constitution; during the third wave, the focus was transferred to political constitution; and finally, in our contemporary age, since, say, the Treaty of Amsterdam the pacemaker role appears to have been taken over by security constitution. Such a temporal succession should not be interpreted in the sense of an emerging constitutional aspect replacing or supplanting the previous one; rather, the constitutional dimensions complement each other. Thus, the latent and manifest development of economic constitution has not stopped, and the economic constitution retained its functional primacy. Constructing a common (internal) market has been the motor of the whole integration process and, correspondingly, the non-economic constitutional dimensions have largely developed as a response to demands raised or consequences set off by the economic one. Here we can talk of relations of implication. Finally, relations between aspects of constitution can also be of a conflictual nature. Thus, the normative implications of economic constitution may clash with those of, say, political or social constitution. Before the European Court of Justice, such conflicts often assume the guise of contests between different types of rights: between, on the one hand, rights related to market freedoms and, on the other hand, civil and political or social rights.

Spain: Euroscepticism in a Pro-European Country?

Since its accession to the European Community in 1985, Spain has been considered a pro-European country. However, in 2005 the referendum on the European Constitution revealed the existence of some fractures among parties, while Spaniards' acritical acceptance of the relationship between Spain and Europe has also been denounced. The article asks whether these developments suggest an increasing euroscepticism among Spanish political parties and citizens. It reviews the euroscepticism of Spanish parties and citizens and concludes with a reflection on the links between parties and citizens.

A longitudinal study of euroscepticism in the Netherlands: 2008 versus 1990

With a unique longitudinal data set covering a time-span of 18 years, we test to what extent euroscepticism evolved among the Dutch between 1990 and 2008. We compare Eurosceptic attitudes on the eve of the signing of the Treaty of Maastricht with attitudes after the Dutch ‘no’ in the referendum on the European Constitution. We find a strong increase in euroscepticism among the Dutch. This change did not develop evenly across the educational strata. We propose to explain these differences through the utilitarian, political cueing, political cynicism and identity approaches. Over the years, the less educated have become more cynical about politics and have come to perceive a greater ethnic threat than before, which explains their stronger increase in euroscepticism. In contrast to 1990, perceived ethnic threat was the main predictor of euroscepticism in 2008.

The Lisbon Treaty and the principle of subsidiarity

In this article authors focus their attention to one of the key principles of the European Union - the principle of subsidiarity. In introduction they refer to the European Union as a sui generis entity not just speaking in terms of its organizational structure but also in terms of distribution of power within it. In this line they consider the principle of subsidiarity. In the second part of the paper, authors focus their attention to arrangements provided by the Maastricht Treaty - which introduced the principle of subsidiarity, the Amsterdam Treaty, the Draft on the Constitution for Europe and, at last but not at least, to the Lisbon Treaty. Having on mind significant changes introduced by the Lisbon Treaty regarding the principle of subsidiarity, this treaty has a special place.

The Making of a European Constitution. Judges and Law Beyond Constitutive Power – By Michelle Everson and Julia Eisner

European Law JournalVolume 17, Issue 1 p. 138-140 The Making of a European Constitution. Judges and Law Beyond Constitutive Power – By Michelle Everson and Julia Eisner Ross Carrick, Ross Carrick University of EdinburghSearch for more papers by this author Ross Carrick, Ross Carrick University of EdinburghSearch for more papers by this author First published: 28 December 2010 https://doi.org/10.1111/j.1468-0386.2010.00542_1.xRead the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Volume17, Issue1January 2011Pages 138-140 RelatedInformation

Constitutionalism and Constitutional Anomie in the New Europe

The recent (re-)establishment of constitutional democracies in Central and Eastern Europe is affected by a paradoxical situation: while modern constitutionalism was significantly strenghtened by the ‘new constitutionalism’ in the region, it is itself increasingly seen as out of touch with (pluralist) reality. In the paper, I explore to what extent it can be claimed that the new constitutionalism adopted in the former communist countries is a reinvigorated version of ‘traditional’ modern constitutionalism. To the extent that this seems indeed to be the case, I outline a number of problematiques or tensions that modern constitutionalism provokes in the current European context. These include four problematiques in particular: state-centrism, cultural diversity, depoliticization, and participation. In the third section, I will discuss possible solutions to or ways out of these four problematiques by hinting at, in a descriptive sense, insufficiently (or un-)explored dimensions of the Central and Eastern European constitutions. And in a more normative sense, I will at the same time indicate possible steps towards constitutional change that would, in my view, make current constitutional orders more amenable to challenges of pluralism, democratic legitimacy, and post-nationalism.

A Hybrid within a Hybrid: Contextualising REACH in the Process of European Integration and Constitutionalisation

REACH is a new European Community Regulation on chemicals and their safe use. This Regulation is a hybrid that combines hierarchy and heterarchy from a both a legal and an organisational perspective. Such hybridism is, however, not a feature that is particular to REACH. Rather the EU itself must be understood as a hybrid, thereby making REACH a hybrid operating within a hybrid. The hybrid structure of REACH reflects its societal function, which is to simultaneously separate and combine politics, science, economy, health and the environment within a single legal framework. The legitimacy of REACH reflects its hybrid structure in the sense that it is based on a combination of democratic, procedural and deliberative components.

(Re)Constructing the European Past: Christianity and the French Religious Memory

(Re)Constructing the European Past: Christianity and the French Religious Memory Yelena Mazour‐Matusevich If you forgive anyone his sins, they are forgiven;: if you retain the sins of any, they are retained. (John 20:21‐23) Now, when a united Europe has become a political and economic reality, European nations must politely forget that they used to be hereditary enemies and become good neighbors instead. The European Union was, after all, at its beginnings, not only a project about peace, and economic exchanges, it was also about forgiveness and grace. In a sense, constructing a common Europe is an unprecedented Christian experiment in and of itself for it consists of applying the essentially Christian idea of total forgiveness1 to entire nations, compelling millions of people to put their mutual resentments aside, pardoning each other for all eternity. Alas, a simple trip through Europe easily demonstrates to a naïve tourist that love for geographic neighbors is not on the menu. The pioneering experiment of transforming an essentially personal action of forgiveness into a collective effort has proved to be an enormous challenge. Europe’s long history, like any history, was filled with wars, massacres and prejudices, and collective national memories, with their extensive lists of grievances against the historical other, represent mental barriers for the creation of Europe’s new identity. Indeed, this identity cannot be forged without each country confronting its own national past or rather, the way each nation views and evaluates this past, for, in the context of a historical narrative, “subjectivity is truth and truth is subjectivity.”2 Confronting European historical subjectivities is particularly urgent with regard to the question of Europe’s Christian identity. The recent 2004‐2009 polemics over the inscription of Christian references in the preamble to the European Constitution reveal the significance of the present moment, when each European country must face not only its own collective memory and memories of other Christian nations but also formulate the place of religion in the new Europe.3 The present essay will focus on the case of France and the French religious identity and memory. Western man today is characterized by: An innocent mind and a heavy memory. Emile Poulat I imprudently presented the first draft of this paper at a conference in 1998. Never would I have dared to embark on such a perilous venture again if, after duly scrutinizing the current French media and public Internet forums, I had not happened to notice that the situation in France has not changed substantially in twelve years. It turns out that my initial analysis of France’s major tendencies in dealing with its Christian past is still valid. The tendencies in question are not equally represented in terms of frequency or influence, nor are they completely isolated from each other. The first, the most common trend, is that which journalist and famous essayist Jean‐Claude Guillebaud called “modernité appauvrie,”“an impoverished modernity.”4 People holding this attitude feel estranged from their national past, which they perceive as incomprehensible and, most importantly, no longer theirs. This popular opinion might have an intellectual variation whose proponents consider France’s history too national to be used as a common European foundation and propose to see Europe’s future as constructed from a tabula rasa, from now on. Although lacking even the most basic understanding of what religion is (Jean‐Claude Eslin),5 this dismissive tendency views Christianity as a burden, which, together with the rest of the national memory, is too complicated to take on. In a sense, this outlook is neither anti‐Christian nor anti‐religious per se because it expresses the general and growing alienation of French society from its collective memory, a phenomenon Eslin called “the French without France.”6 Here we will call it the “anti‐history” position (not to be confused with anti‐historical). It does not deny history; rather, it wants none. The second attitude is what Guy Coq, author of Démocratie, religion, éducation (1993) and Secularity and Republic (1995), calls “vulgate républicaine.”7 This ideological position dates from the good old days of the “war of two Frances,” when progressive, secular forces opposed the traditional, Catholic...

Failure or Ideological Preconceptions – Thoughts on Two Grand Projects: The European Constitution and the European Civil Code

I am interested in the relationship between constitutional and private law. The two Grand Projects, the European Constitution and the European Civil Code, serve as a catalyst to develop my argument. I will first look at the link between the two Grand Projects by placing emphasis on parameters which may help to explain and to analyse the reasons why both ended or seem to have ended in deadlock. I use the metaphor of ‘failure’, meaning the political ‘failure’, the non realisation of the European Constitution which has now been replaced by the Lisbon Treaty and the predictable ‘failure’ of the European Civil Code project, called the Common Frame of Reference, which obviously does not have the support of the European Commission, the Council or the Member States. Ideological preconceptions refer to implicit assumptions which united the elaboration of the two Grand Projects despite their conceptual differences. It will have to be shown that the idea of a European Constitution is at least based on a mandate from the Member States, whereas such a mandate does not exist in the European Civil Code project. So there is an inherent deep difference between the Grand Projects. Seeking deeper links via implicit assumptions, however, suggests that the two Grand Projects are politically and legally connected despite their different origins and functions. Only by understanding the linkage may we create an opportunity to put private law into a constitutional perspective.

The Importance of Actor Cleavages in Negotiating the European Constitution

This paper aims to explore government preferences and cleavages in the bargaining process on the European Constitution, across the range of 25 EU member states. The study focuses on preferences concerning socioeconomic policymaking and explores whether divisions can be discerned between preferences held by actors according to locations on the left-right policy scale, actors in older as compared to newer EU states, net EU budget positions, domestic rates of support for European integration, and smaller as compared to larger states. The analysis also controls for possible external effects, such as recent domestic macroeconomic developments. Negotiations on the European Constitution are found to be determined less by general transnational left-right divisions, but cleavages according to the length of EU membership and the size of EU member states.

The Treaty of Lisbon and its Impact on the European Union’s Democratic Deficit

In volume 10 of the Columbia Journal of European Law the editors published an extensive article by Professor Sieberson, entitled “The Proposed European Union Constitution-Will It Eliminate the EU's Democratic Deficit?” That article analyzed the first draft of the European Union's Constitution against a wide array of scholarly comment on the EU's so-called “democratic deficit”. When the Union abandoned the Constitution in 2007, the editors invited Professor Sieberson to follow up his earlier article with ananalysis of the Constitution's replacement, the new Treaty of Lisbon. Because this article builds on the previous piece, the full background analysis will not be repeated Rather, the author will draw from his earlier catalogue of factors that comprise the democratic deficit, briefly identifying the primary components of the theory and citing representative sources. For each item he will offer a brief evaluation of whether and how the Lisbon Treaty willaffect the deficit.

L'Idee d'Europe au XVIIIe siecle: actes du Seminaire international des jeunes dix-huitiemistes, Genes, 24-29 octobre 2005/The Idea of Europe in the 18th Century: Proceedings of the International Seminar for Young Eighteenth-Century Scholars, Genoa, 24-29 October 2005

This multilingual collection of thirteen articles is the outcome of a conference on the historical dimensions surrounding the notion of European identity, a subject that has become a prominent feature of recent discussions on the nature and future of the European Union and, more particularly, of the legitimacy of its decision-making procedures on the one hand, and its relationship with Turkey on the other. The focus of the collection is whether either of these aspects of the identity of Europe had any antecedents in the eighteenth century. The volume is divided into four sections, dealing respectively with European concepts of Europe, Europe seen from the outside, Europe as described in eighteenth-century travel writing, and Europe as seen in the eighteenth-century arts and sciences. The result is an interesting collection about an important subject, even though the variable quality of the contributions makes the whole array rather heterogeneous. Some contributions, like Nere Basabe's wide-ranging chapter on eighteenth-century peace plans and their bearing on the work of Juan Francisco Siñeriz, an early nineteenth-century Spanish advocate of a European constitution, and Sabrina Broselow Moser's chapter on Swiss Robinsonades, contain fascinating and absorbing material. Others, however, cover familiar ground (Saint-Pierre, d'Argenson, Rousseau, and Kant) in predictable ways. It is a pity that the publisher appears not to have checked the final proofs before the collection was printed, because the Index contains a list of names but no page numbers.

Legal Professionals or Political Entrepreneurs? Constitution Making as a Process of Social Construction and Political Mobilization1

During 2002–2003, the European Convention prepared a draft treaty establishing a Constitution for Europe that was later reshuffled into the now in force Lisbon Treaty. Although the decision-making process at the Convention received considerable attention, little is known about the drafters themselves, both as individuals and as a group. In this article, I argue that the drafting of the constitutional treaty can be described as a process of social construction/political mobilization in which a transnational community of legal professionals/political entrepreneurs successfully put the issue of a European Constitution on the political agenda, and later framed the debates at the Convention, where a wider circle of prominent politicians proved rather receptive to their arguments. Based on an in-depth empirical study, including a systematic analysis of the social recruitment of the Convention, this article highlights the part played by transnational professional communities—somewhere in-between “epistemic communities” and “advocacy networks”—in contemporary European politics.

Social Rights and Market Freedom in the European Constitution: A Re-Appraisal

Building a common market while preserving the legitimate concerns for different social models at national level has always been one of the main challenges of the European project. The aim of this article is to verify how the normative criteria, which preside over such a delicate balance between constructing a common market and preserving legitimate differences in the national welfare systems, have changed over time. It is submitted that these criteria have in fact significantly changed, with a progressive shift from the upward harmonization paradigm to regulatory competition between systems. The decline of harmonization, as the main tool for governing the differences between national social systems, has in fact gradually left its place to a mix of new regulatory techniques, which were enriched during the 1990s and lastly rationalized by the Lisbon Treaty. Moreover, in the latest phase that follows the 2004 enlargement, the regulatory competition – conveyed by means of a very liberal interpretation of the freedom to provide services – has come to occupy some of the most protected areas of national labour law. These trends are likely to generate difficult tensions between the legitimate demands of preservation of national social models and the demands of enlarging and deepening European integration. A reinforced coordination, via hard law, is needed, and possibly a further re-shaping and re-launching of differentiated harmonization techniques, along with a solid framework of fundamental social rights and principles enshrined in the body of the new Treaties. It is submitted that if we want to avoid the risk of crisis of the European integration process this way of coping with the challenges of diversity has to go forward to looking for a virtuous balance between market freedom and social rights in the European Constitution.

Procedural Consumer Protection and Financial Market Supervision

The financial crisis challenges the European Economic Constitution in that the two major pillars, the competition rules and the economic freedoms are put into question. This working paper contains the proceedings of a workshop which was held in Florence on the 4th December 2009. The paper brings the consumer protection dimension into focus which has to be taken into account when it comes down to revise the architecture.