EU Constitution Research Articles

Toleration in the European Union: a forgotten virtue

ABSTRACT When the Hungarian Parliament passed legislation prohibiting the dissemination of information on diverse sexual and gender identities to minors, the Commission launched infringement proceedings pleading a breach of the common values under Article 2 TEU, amongst others. The dispute constitutes the occasion to explore the meaning of toleration in the EU and its scope, i.e., whether alleged intolerance of national minorities does or should lead to transnational intolerance of the EU vis-à-vis its Member States. Putting the work of the political philosopher Rainer Forst into dialogue with EU constitutional theories, this article identifies three justifications for transnational toleration: (1) functional; (2) liberal multicultural; and (3) liberal constitutional. By reference to the Hungarian case study, the article shows that these justifications are liable to legitimise transnational toleration on ethical rather than moral grounds. The dense structure of EU constitutionalism impairs a moral justification by way of Article 2 TEU.

Legal Culture in the European Union in the Light of EU Constitutionalism

The aim of the article was to assess the legal culture in the European Union during the crises plaguing Europe in the 21st century. It focuses on a case study of the Covid-19 pandemic crisis. Although legal culture develops over a long period of time, it seems that in recent years the process of its change has accelerated, which is very clearly visible on the example of EU constitutionalism. The assessment of legal culture during the pandemic crisis was thus analyzed in relation to EU constitutionalism. The most important research questions included: (i) Have the most important constitutional values of the EU been transformed due to the crisis? (ii) Have the procedures for changing constitutional law been maintained?, (iii) Has appropriate democratic control and accountability been maintained throughout the process of these changes?, and finally (iv) What was the role of politics in the processes of EU constitutionalism?

Philosophy of Law or Philosophy of Reason –The Idea of a Treaty Establishing a Constitution for the European Union

The main purpose of the study is to analyze the feasibility and necessity of an EU Constitution. Briefly, the history of the draft constitution is as follows: The draft treaty aims to codify the two main treaties of the European Union - the Treaty of Rome of 1957 and the Treaty of Maastricht of 1992, as amended by the Treaty of Amsterdam (1997) and the Treaty of Nice (2001). The debate on the future of Europe is believed to have begun with a speech by German Foreign Minister Joschka Fischer in Berlin in 2000. The process began after the Laeken Declaration, when the European Convention was set up, chaired by former French President Valerie Giscard d'Estaing, with the aim of drafting a constitution. The draft contract was published in July 2003. After lengthy discussions and debates over the proposal for qualified majority voting, the final text was approved in June 2004 and signed by representatives of the Member States on 29 October 2004. The failure of the treaty in France and the Netherlands is a serious blow to the European Union because these two countries are considered to be loyal supporters of the European project. The text of the treaty was subsequently rewritten by the Amato Group, officially the Active Committee on European Democracy (ACED), a group of high-ranking European politicians. During the German presidency of the Union, a new treaty was proposed - the Treaty of Lisbon - to replace the original draft of the Constitution. On 12 June 2008, the Lisbon Treaty was also rejected in a referendum in Ireland. But if we want to look beyond history, we can ask - Why does the EU need a Constitution and how can the Constitution be the roadmap to an advanced future for the EU? The answers to this question can be found by analyzing several directions (these are the main points of the article): historical reflexivity; socio-cultural analysis of the philosophical concepts of well-known political and social philosophers such as Immanuel Kant, John Locke; the modern constellation through the prism of Jürgen Habermas and the decision to make a text as a Constitution which its aim is to reach the starting point of an entire community like the EU. Keywords: constitution, EU, philosophy, law, John Locke, Immanuel Kant, Jurgen Habermas

Voter Disenchantment in the Aftermath of the 2005 EU Constitutional Referendum in France

In a popular referendum in 2005, French voters rejected their country’s adoption of a proposed EU Constitution. Yet, in seeming defiance of the popular vote, the government subsequently proceeded to implement the core of the legislation without consulting the public again. This article empirically examines the electoral impacts of these events. We build a comprehensive fine-grained dataset of nationwide election results for more than 36,000 metropolitan French municipalities. Employing cross-sectional analysis for all national elections held in the decade after the referendum vote, we find that the strength of a municipality’s rejection of the EU Constitution in 2005 is associated with a lower voter turnout, higher shares of blank votes, and larger gains for anti-system parties in subsequent elections. The findings are robust to various modelling choices and the inclusion of a large array of controls. The results indicate that bypassing a popular vote could entail protracted adverse effects on the quality of democratic participation and deliberation.

Models of EU Constitutional Reform: What do we learn from the Conference on the Future of Europe?

Abstract Constitutional reform in the European Union suffers from a post-functionalist dilemma: the options that are politically viable are not democratically legitimate and the options that are democratically legitimate are not politically viable. Against the background of the recent Conference on the Future of Europe and the involvement of transnational European Citizens’ Panels, this article asks whether there is any prospect of overcoming this dilemma and organizing fundamental reform of EU institutions that is both normatively legitimate and politically viable. For this, it examines four models of EU treaty reform and the way these have figured in actual EU reform processes: Intergovernmental Conference, European Convention, informal intergovernmentalism and a Citizens Convention. The article concludes that, as long as the European Union is best characterized as a ‘demoi-cracy’ in which political deliberation takes place primarily in national public spheres, the Intergovernmental Conference remains its main and inevitable forum for constitutional reform. Hence, alternative models of EU constitutional reform should be evaluated not so much on the basis of their potential to substitute the IGC but rather on their ability to catalyse the process and to pre-commit the member state governments.

The primacy of the European Central Bank: Distributional conflicts between theory and practice in the pursuit of price stability

Whether fighting inflation or deflation, it has been a decade since the European Central Bank (ECB) managed to successfully attain its Treaty-mandated objective, that is, price stability. This is defined by the Bank itself as maintaining an inflation target of ‘below but close to 2% over the medium term’ and, since 2021, as ‘2% over the medium term’. The further reality has veered from policy, the more attention has been brought to the redistributive choices, both implicit and explicit, in the ECB’s pursuit of price stability. The current article analyses this debate in the context of the legal terms stipulated in the Treaty on the Functioning of the European Union, conceptualised as a function of monetarist theory. It claims that the ECB’s failure to deliver on its price stability objective has contributed to intensifying the re-politicisation of monetary policy, cast doubt on the presumed legitimacy of foundational monetarist theory and caused a legal struggle within EU constitutionalism to sustain a stable distinction between economic and monetary policy.

The EU and Third Countries: Consequences for Democracy and the Political Order

AbstractThis article discusses the democratic implications of third country incorporation for the EU and for third countries. The more the EU transforms sovereignty in an open and inclusive manner, the greater the scope for third country presence, participation and influence. For the EU, the greater the presence and influence of third countries, the more pressing the democratic incongruence. For third countries, the better included and the more they participate, the less incongruent their affiliation, and the more similar to members they become. These considerations depend on how the EU structures its relations with third countries and the nature of the EU's political order. It is in the EU's internal market and flanking areas that the pooling and sharing of sovereignty is the most pronounced. The conundrum facing third countries and the EU is that the internal market is central to the EU's constitution as a political system.

European governance as an institute of constitutional law of the European Union

Introduction. The article considers one of the most important issues of constitutionalization of EU law, namely the processes of internal structuring of the constitutional law of this supranational entity. The author substantiates the opinion that together with the expansion of the EU's competence and the strengthening of the processes of interstate integration within the framework of the EU constitutional law, the institution of European governance is gradually crystallizing. In the system of constitutional law of the EU, this institution occupies a place similar to that in national legal systems occupies the institution of the form of government. The Institute of European Governance reflects the modus operandi (from the Latin "method of action") of the EU as a supranational entity, which has significant specifics in terms of institutional and functional organization and mechanism for developing and implementing government decisions. The process of forming European governance and filling it with specific content takes place within the general process of "setting political and legal standards", based on the latest advances in political and legal theory and practice and reflecting the highest requirements for quality governance and EU rights and freedoms. Summary of the main research results. Today the European Union has accumulated significant experience in reforming and improving public administration and public service, although these areas are not directly regulated by the acquis communautaire. Therefore, today the acquisition in the field of public administration and public service organization mainly takes the form of "soft law" and "soft standards" - White Papers and communications of the European Commission, recommendations of conferences of ministers responsible for public administration and / or heads of departments of public services etc. A systematic analysis of EU legislation suggests that the most significant distinguishing features of European governance are that it is based on the principles of good governance, multi-level (including network) governance, the rule of law and respect for human rights. Initially, European governance had the character of an intersectoral principle that determined the order of organization and activities of public authorities within the EU in all areas of the functioning of public administration, but after the adoption of the Charter of Fundamental Rights of the EU and giving it the force of the founding treaties of the EU (i.e., giving it essentially the status an integral part of the unwritten constitution of the EU), where one of the fundamental human rights is the right to proper governance, this principle is actually brought to the level of the foundations of the constitutional law of the EU. Conclusions. The conclusion is substantiated that European governance from the point of view of the constitutional law of the EU means good, multi-level, subordinate to the law and “respectful of human rights” governance. The transformation of the concept of European governance into the EU legal system is a vivid example of the constitutionalization of this supranational entity. In the system of constitutional law of the EU, European governance as a political and legal concept has become a fundamental constitutional principle, one of the foundations of the constitutional order of the EU. Ukraine's course towards European integration leads to the need for full implementation of the requirements of European governance in political and legal practice and national legislation.

Differentiation and EU Governance: Key Elements and Impact

ABSTRACT Existing literature on differentiated integration has made an important contribution in theorising and operationalising its regulatory dimension. However, in order to fully evaluate the impact of differentiation on EU governance, this approach needs to be enriched with additional elements. The organisational element allows us to grasp the different forms, venues and actors of differentiation. The constitutional element connects the different forms of differentiation to the foundations of EU constitutionalism and identity. The socio-political element goes beyond the analysis of differentiation as a policy practice and qualifies it as a policy choice. On this basis, a generalisation is proposed resulting from a comparative analysis of a wide range of contributions in different policy sectors in order to assess differentiation in the EU’s governance against three main criteria: effectiveness, sustainability and accountability/legitimacy.

Governing Differentiation and Integration in the European Union: Patterns, Effectiveness and Legitimacy

ABSTRACT We present here the key theoretical underpinnings and general approach of the Special Issue “Governing Differentiation and Integration in the European Union: Patterns, Effectiveness and Legitimacy”, which collects contributions of a group of experts and scholars from the Horizon 2020 EU IDEA – Integration and Differentiation for Effectiveness and Accountability project. The key concepts for the analysis are clarified, namely differentiation, differentiated integration, effectiveness, legitimacy and sustainability. The basic claim of the Special Issue is that differentiation is not only necessary to address current challenges more effectively by making the Union more resilient and responsive to citizens. By introducing a useful degree of flexibility in the complex EU machinery, differentiation is also desirable, so long as such flexibility is compatible with the core principles of EU constitutionalism and identity, sustainable in terms of governance and acceptable to EU citizens, member states and affected third partners.

Doctrine of methods of interpretation of legal norms formed in the case law of the Court of Justice

The doctrinal approaches to the definition of methods and principles of interpretation of legal norms applied by the Court of Justice of the EU are analyzed. The traditional and special methods of interpretation inherent in integration justice are singled out. The dynamics of changes in the approaches to the interpretation of legal norms in the decisions of the Court of Justice of the EU after the signing of the Lisbon Treaty is described. Scientific approaches to defining the concept of interpretation of legal norms contained in domestic sources are analyzed. Foreign sources on the methods of interpretation of the law by the Court of Justice of the EU have been studied. The article analyzes several European publications written at different times before the signing of the Lisbon Treaty and established, which primarily draws attention to authors who have subjected the theological method of interpretation, and very few sources that influence the justification of methods or principles of their application by the Court. It can be concluded that the tendency of European scholars to emphasize the importance of the theological method of interpretation was related to their views on the constitutional nature of the Treaties and legal considerations about the need to adopt the EU Constitution. Such conclusions correlate with the limited jurisdiction of the Court of Justice, as before the signing of the Lisbon Treaty not all provisions of secondary legislation were interpretable (in particular, visas, asylum, immigration and other policies related to the movement of persons). on the constitutionality of the Treaties, although their form and content have become even more similar to constitutional acts, without losing a clear functional statement of provisions. Since then, the case law of the Court of Justice has been characterized by a variety of methods of interpretation, and European doctrine by publications that have re-substantiated the system of methods and paid more attention to their detailed analysis, making each of these methods autonomous and collectively interchangeable.

Republican Theory and the EU: Emergency Laws and Constitutional Challenges

The COVID-19 pandemic has raised many intriguing questions both in the EU and globally, from the critical task of safeguarding lives to technical legal issues about competences to regulate health as well as the boundaries of emergency laws. This paper is interested in the connection between non-domination theory and the EU’s constitutional structure in the context of emergency laws. A key theme of the paper is that risk and emergencies are nothing new in an EU context, but concepts used by the legislator in a wide range of policy areas which give rise to a number of constitutional challenges. The paper sketches out the main characteristics of non-domination and republication theory and addresses the question of how and why the notion of non-domination may be useful for understanding the EU constitutionalism venture in the framework of risk and emergency laws.

Constitutional pluralism and loyal opposition

Abstract Constitutional pluralism has long been controversial, but has recently come under renewed attack. Critics allege that by justifying departure by national courts from the Court of Justice of the European Union’s (CJEU) orthodoxy on the primacy of EU law, constitutional pluralism is (at best) susceptible to abuse by autocratic member state governments, or is (at worst) a favored tool of Europe’s new authoritarians. This article is a defense of heterodoxy in European constitutional thought, and of constitutional pluralism in particular. It uses the concept of “loyal opposition” as a framing discourse, allowing us to see that heterodox approaches to EU constitutionalism and opposition to the received and dominant interpretation of the primacy of EU law are not necessarily any less “loyal” to the principles and values of European integration than agreement with the CJEU. A “legitimacy test” is proposed, by which we can determine whether a given instance of national judicial disagreement with the CJEU is loyal, principled opposition, or disloyal, abusive opposition.

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

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.

Ensure the Inviolability of Personal Life in the Conduct of Police Preventive Activities

The paper addresses the basic rights and freedoms guaranteed by the Constitution of Georgia, in particular, issues related to personal data. The development of information technology has had a significant impact on the dangers of illegal processing of personal data. The European Court of Human Rights considers the inviolability of private life as a precondition for human autonomy, independent development and protection of human dignity. According to the norms of international law, the right to respect for private life is recognized as one of the most important and fundamental rights, the protection of which is indicated by the legislation of Georgia. The aim of the paper is to analyze the legislation and practice of police law in the field of protection of the right to privacy and to offer relevant recommendations, taking into account the standards set by European and national courts. Human rights legislation must ensure the protection of all human beings against the abuse of state power. Interference with rights must be based on the principle of proportionality. The use of policing should not pose an excessive threat of fundamental human rights violations. Interference with a particular right must be done under principle of proportionality to achieve a certain public good. In clarifying the issue of alleged violation of the right, special attention should be paid to the severity and probability of the expected threat to legal good. The Constitution of Georgia, EU and Council of Europe data protection standards, national legislation, as well as the case law of the European Court of Human Rights and the National Constitutional Court are analyzed around the topic. In addition, the reports of the State Inspector, the Public Defender and the relevant scientific literature are used to study the above issues.

‘Re-constituting’ the Internal Market: Towards a Common Law of International Trade?*

Abstract Are the trade philosophies behind the EU internal market and the WTO international market converging or diverging; and are we, or are we not, moving towards a ‘common law of international trade’? Twenty years ago, an interesting—and swiftly famous—answer to this question was given by Joseph H.H. Weiler. Studying the ‘constitution of the common market’, the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This article argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture. What can this ‘revisionist’ result mean for EU law scholarship in general? If EU constitutionalism wishes to ‘re-constitute’ its object of study properly, it needs to abandon the abstract ways of philosophizing that have become commonplace in the last 25 years. Part and parcel of this methodological renaissance must be a renewed commitment to test (constitutional) theory against (judicial) practice.

'Re-Constituting' the Internal Market: Towards a Common Law of International Trade?

Are the trade philosophies behind the EU internal market and the WTO international market converging or diverging; and are we, or are we not, moving towards a “common law of international trade”? Twenty years ago, an interesting and – and swiftly famous – answer to this question was given by Joseph H.H. Weiler. Studying the “constitution of the common market”, the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This Working Paper argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture. What can this “revisionist” result mean for EU law scholarship in general? If EU constitutionalism wishes to “re-constitute” its object of study properly, it needs to abandon the abstract ways of philosophising that have become commonplace in the last 25 years. Part and parcel of this methodological renaissance must be a renewed commitment to test (constitutional) theory against (judicial) practice.

Why Read the Transformation of Europe Today? On the Limits of a Liberal Constitutional Imaginary

This article argues that reading Transformation today may help us understand the limits of liberal constitutional imaginary, on which Transformation builds and which it helped to establish in the 1990s. Now, when ‘Western liberalism’ is on retreat, such critical reading may be indispensable for those who look for alternatives. The article is structured as follows: Part 2 brielfy defines the concept of ‘constitutional imaginary’. Part 3 provides a brief genealogy of Transformation and offers a critical reading of the whole essay, which prepares grounds for Part 4, where Transformation’s constitutional imaginary based on liberal-legalist ideology combined with a communitarian utopia is outlined. It is shown how each of them contradicts the other, but at the same time, how none can exist without the other. Part 5 reveals what Transformation (and its imaginary) hides from sight: how its rendering of European integration’s history, reduced to the narrative of Europe’s founding fathers’ reflective choice for Europe, and the ignorance of political economy, overlooks the complex and complicated histories of the states that came to form the Union. The conclusion finally connects these findings to the current issues facing the EU and liberal constitutionalism as such.

Against Bidimensional Supremacy in EU Constitutionalism

Scholarly consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction (an originally shared popular sovereignty theory, which turns out to be riddled with biases that disrupt the equilibrium within the internally divided sovereign). On the interpretative side, I suggest that the empirical evidence in support of bidimensional supremacy is weaker than it is generally assumed. I then offer an interpretation of the PSPP judgment of the German Federal Constitutional Court, which holds a judgment of the Court of Justice of the European Union to be ultra vires, unlawful and thus non-binding. PSPP presents a problem of German origins and cast, rather than one stemming from the inner structure of EU constitutionalism. At most, PSPP represents a contingent, rather than necessary, and thus unexceptional instance of bidimensional supremacy.

Revitalization of EU Constitutionalism

Imaginary is both a goal and a map charting the path to that ideally imagined socio-political construction. Ideas matter and, indeed, human beings make things with words, especially in the social reality, but there is no direct or linear trajectory between the concepts, on which a given imaginary is built, and its capacity to actual self-realization. While we cannot know in advance what works, the historical experience can, however, teach us what does not. This article argues that the dominant EU constitutional imaginary, which has been based on the US comparative experience, did not work for the European Union. Still, the latter is faced, and increasingly so, with difficult constitutional questions. These ought to be addressed constitutionally, following an alternative, better-fitted constitutional imaginary. The paper was written as part of a workshop organized in the framework of the Project IMAGINE, which has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No 803163). The research for this paper has benefited from the support of the Slovenian Research Agency within the framework of the research project No. J5-1791 (A) An integral theory on the future of the European Union.