Revue Européenne du Droit
The Promise and Peril of Europe
Issue #3
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Issue #3

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Signe Rehling Larsen

La Revue européenne du droit, December 2021, n°3

The groundwork of European power

    Since the 1957 Treaty of Rome, the European Union has been committed to the creation of an ‘ever closer union among the peoples of Europe’. Often held out in the Eurosceptic press as an univocal commitment to further integration, this fundamental constitutional aim of the European Union is actually ambiguous. On the one hand, the commitment entails a clear expression of a wish for union on the part of the contracting parties, of the European peoples coming together in a new European polity. Yet, on the other hand, it seems that there are limits to the degree of unity that the European Union is meant to create: the union is among the peoples of Europe. By insisting on the plurality of peoples, the constitutional aim of the European Union insists not on dissolving the constituent states of the union, but rather on preserving them. This is also reflected in the motto of the European Union: ‘united in diversity’. The European Union, in other words, is not meant to create a new singular unity that makes the previous political communities redundant. As Joseph Weiler put it: ‘No matter how close the Union, it is to remain a union among distinct peoples, distinct political identities, distinct political communities’ 1 .

The constitutional aim of the European Union is sometimes portrayed as one of the reasons why the European Union stands out from other federations. Yet the alleged difference is overstated. In fact, the commitment to the creation of an ever closer union among the peoples of Europe is an expression of what the Victorian English constitutional lawyer, Albert Venn Dicey, called the ‘peculiar sentiment’ out which all genuine federal constitutions are born: the wish to live together, yet without being one; and, at the same time, the wish to remain autonomous, without being completely separate from one another 2 . The inhabitants of the states who wish to come together in a federal union had to come together based on a desire to unite, Dicey reasoned. If not, there was clearly no basis for constituting a union among themselves. Yet at the same time, he argued, they could not desire unity. If they did, this wish would be much better attained under a unitary, rather than a federal, constitution. The peculiar sentiment that gives birth to federal unions, therefore, is a wish for union but not complete unity. ‘The sense of common interests, or common national feeling’, Dicey wrote ‘may be too strong to allow of that combination of union and separation which is the foundation of federalism’ 3 . Federal union of states, like the European Union, therefore, always have a dual aim: the creation of an ever closer (or a ‘more perfect’) union and the protection of the autonomy and diversity of the Member States 4

Within EU law scholarship, this has always been understood to be the normative promise of the European Union. In the 1990s and the 2000s, the European Union was held up as a constitutional model that could – and should – be emulated in the rest of the world. The constitutional promise of the European Union was to temper nationalism yet without recreating its vices at a ‘higher level’ by avoiding the creation of a new ‘super state’ 5 . In this way, the real or imagined dangers of sovereignty could be held in check: the sovereignty of the Member States was restrained by EU law without the complete transfer of sovereignty to the European level 6 . The European Union heralded a world beyond sovereign statehood; a Europe of ‘post sovereign’ states, as Neil MacCormick argued 7

This manifested itself in a distinct, and normatively superior, form of constitutional discipline: ‘constitutional tolerance’ in Weiler’s terms 8 . Whereas the people of more centralised federal states, like Canada, were told that they were obliged to obey federal authority, Weiler argued, the peoples of France, Italy and Germany were invited to obey European authority: ‘When acceptance and subordination is voluntary, and repeatedly so, it constitutes an act of true liberty and emancipation from constitutional fetishism: a high expression of Constitutional Tolerance’ 9 . The European Union, it seemed, had finally proved Thomas Hobbes wrong: covenants without swords could be more than just words. 

    In the 1990s, of course, the highest courts of several Member States started in earnest to call into question the absolute character of the supremacy of EU law as well as the authority of the European Court of Justice to interpret the validity and scope of EU law 10 . The European Union was not characterised by legal monism but rather a plurality of interdependent and overlapping constitutional orders without a clear hierarchy between them 11 . This was captured by the theories of ‘constitutional pluralism’ that became a dominant position within EU law scholarship in the following decades; both as an empirical diagnosis and as a normative promise 12 . The constitutional ‘dialogues’ between the German Constitutional Court and the European Court of Justice in the pre-Maastricht Solange judgements 13 were widely perceived as being instrumental to the constitutional protection of fundamental rights at the EU level and they were held up as inspiring examples of something akin to judicial deliberative democracy 14 . The conversation between lawyers and judges in Europe’s courts was expected to lead to an ethically superior world where fundamental rights and the rule of law would enjoy greater projection nationally as well as transnationally. 

    Yet in recent years it has become clear that Europe’s constitutional aim of union without unity, as well as the constitutional pluralist architecture that was understood as its embodiment, is also the European Union’s peril. The voluntary acceptance and subordination of the Member States to EU law has come under serious strain. The contestation of EU authority in the supreme and constitutional courts of the Member States has moved away from the idealised judicial incarnation of deliberative democracy towards open conflict and crisis. In a number of high-profile cases on the European Central Bank’s response to the Eurozone crisis, the German Constitutional Court has openly contested the legality of the actions of the European Central Bank on the basis of the EU Treaties and the German Constitution as well as the authority of the European Court of Justice 15

This contestation shocked the legal establishment, yet it has been overshadowed by a recent decision of the Polish Constitutional Tribunal, where not merely an EU act but rather core provisions of the Treaties themselves as well as the supremacy of EU law were declared to be unconstitutional 16 . The Polish Constitutional Tribunal specifically targets Article 1 of the Treaty on European Union (TEU), through which the Member States create the European Union, as well as Article 4(3) TEU on sincere cooperation, which compels the Member States to fulfil the obligations that flow from the Treaties. By targeting Article 1 TEU, the Polish Constitutional Tribunal is contesting the most foundational constitutional aims of the European Union. This includes the commitment to taking a new step in the process of creating an ever closer union among the peoples of Europe 17 .

    The openly hostile contestations of EU authority have been met with firm opposition by EU institutions. Neither the European Court of Justice nor the European Central Bank has made any concessions to the German Constitutional Court 18 . In response to the developments in Poland, the European Court of Justice has imposed a daily fee of one million euros until Poland complies with its obligations under EU law 19 . The European Commission has launched infringement proceedings against Poland to protect Polish judges from political control; reaffirmed the primacy of EU law over national law, including constitutional provisions; and stressed the binding nature of all rulings by the Court of Justice of the European Union on Member State authorities, including national courts 20 . The European Parliament has also condemned the contestation of the primacy of EU law; declared that the Polish Constitutional Tribunal is illegitimate and unfit to interpret the Polish Constitution; and called upon the Council and the Commission to urgently protect the people of Poland and the citizens of the European Union 21

Within academia, the consensus is clearly turning away from constitutional pluralism, which increasingly is portrayed as dangerous, and towards the affirmation of a hierarchical, monist legal order, with the European Court of Justice at its pinnacle 22 . In and by itself, however, the scholarly denouncement of constitutional pluralism and support for legal monism is unlikely to lead to a resolution of the current constitutional predicaments or its underlying causes 23 . Constitutional pluralism, after all, is not merely a ‘normative dream’ but also an empirical analysis of the constitutional order of the European Union 24 . What the constitutional pluralists can rightly be criticised for, however, is that they did not enquire adequately into the underlying foundations of ‘constitutional tolerance’, which arguably were already fraying at the edges when the very concept was coined 25 . This problem is by no means unique to the European Union. Rather it is one of the most fundamental constitutional problems of federalism. This is especially the case in relatively young federal unions of states, where federal authority tends to be contested 26 . Constitutional tolerance is not an unconditional gift of federalism.

All federations, including the European Union, are born with an internal tension or contradiction, which arises out of its two contradictory ends 27 . On the one hand, the Member States have rejected the option of consolidating themselves under a new unitary constitution that would dissolve its constituent parts. In coming together in a federal union, the Member States on the contrary aim to perpetuate their own political existence and autonomy. For that reason, a federal union is always conservative in nature, directed towards the past and committed to preserving the diversity of its Member States. On the other hand, a federal union is created because the Member States reject the status quo and decide to constitute among themselves a new ever closer union (or a ‘more perfect union’). Federations, including the European Union, are therefore always creative in nature, they are directed towards the future and committed to protect the unity of the Member States. In this way, a federation is shaped by two forces – a centrifugal and a centripetal – that always threatens to pull it apart 28

The commitment to being ‘united in diversity’ is therefore, simultaneously the promise and peril of the European Union. Somewhat paradoxically, it is the ability of federations in general, and the European Union in particular, to reflect diversity that constitutes its most significant constitutional weakness 29 . The commitment to genuine constitutional autonomy and diversity allows for the emergence and politicisation of conflicts within the constitutional order, which the constitutional order is not equipped to resolve in an unproblematic manner without endangering one of its core aims: either the commitment to unity or the commitment to diversity. This weakness becomes crystal clear if one (or more) of the Member States de jure or de facto amends its constitution in a manner that is hostile or in open conflict with the constitution of the Union as a whole. Can such a constitutional change be tolerated? The answer to that question is ambiguous. On the one hand, the Member States of the European Union remain constitutionally autonomous, and for that reason they have the right to decide on their own constitutional future. On the other hand, the Union cannot allow the Member States to exercise this constitutional autonomy in a way that presents a danger to the unity and autonomy of the constitutional order of the Union as a whole. 

The current Polish affair is an apt illustration. The constitutional structure of the European Union allows the Polish government, on the one hand, to argue that the organisation of justice is an internal constitutional affair, which falls within the exclusive competence of the Member States 30 . They point out that this is even reflected in Article 4(2) TEU, which compels the Union to respect the Member States’ ‘national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’. On the other hand, the Court of Justice maintains, domestic constitutional reforms that undermine the rule of law and the independence of the judiciary are a direct threat to the primacy, autonomy, unity and effectiveness of EU law. For that reason, the referring Polish court, on grounds of EU law, is obliged to disapply the domestic amendments that posit such a threat ‘whether they are of legislative or constitutional origin’ 31 . In this way, constitutional reforms in the Member States have come within the scope of EU law. It is in response to the judgments of the Court of Justice that the Polish Constitutional Tribunal has ruled that fundamental provisions of the EU Treaties, as well as the doctrine of the supremacy of EU law, are incompatible with the Polish Constitution.

    Open constitutional conflicts as the one we are currently witnessing are toxic for federal unions in general, and the European Union in particular, because they undermine the constitutional balance on which all genuine federal constitutions rest. To pre-empt and manage such crises, federal constitutions tend to endeavour to circumscribe and govern the constitutional identity, diversity and autonomy of its Member States. For a federation to remain stable, the Member States need to be relatively constitutionally homogenous. While the ‘common interest’ or ‘common national feeling’ might be too strong for federalism to work, as Dicey remarked, so is it the case that, when it comes to constitutional fundamentals, the Member States need to be substantially similar. With regard to the European Union, this was clearly expressed by Jan Werner-Müller who argued that the European Union ‘has always been about pluralism within common political parameters 32 . There is, in other words, a stark limitation to the diversity that can be tolerated within the European Union – and federations in general. 

Federations, therefore, tend to be united around a shared constitutional project. In the case of the United States, the States were united around the project of revolutionary republicanism; in the case of the nineteenth century German federations, the Länder were united around a counter-revolutionary project, which aimed to reassert monarchical power in Europe in the wake of the French Revolution and the Napoleonic Wars. The common constitutional project that the EU Member States are meant to unite around is ‘value order constitutionalism’ and ‘constrained democracy’ 33 . This ‘post-fascist’ constitutional project, which came to shape the post-WWII reconstitution of Europe, was born out of the experience of the interwar period and World War Two and it signified a new ‘stage’ in the historical development of constitutionalism. Its aim was to defend and protect the liberal constitutional order from the threats of the return of ‘political extremism’ on either the right (fascism) or the left (communism) 34 . At a fundamental level, this constitutional project is founded on a fear of the people and fear of political power 35 . Its aims is not so much to stabilise the exercise of political power, but rather to permanently constrain or even repress it. It therefore empowered independent institutions, most importantly constitutional courts, but other prominent examples would be competition authorities and central banks 36 .

Within this constitutional project, the constitution is envisioned as an order of values, with human dignity at its pinnacle 37 . In the EU Treaties, this is expressed in Article 2 TEU:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The assumption of Article 2 TEU is that the Member States of the European Union are relatively constitutionally homogeneous. The underlying assumption is that all the Member States share the same understanding of the constitution as an order of values, and that their constitutional values are identical to or at least compatible with the constitutional values of the European Union. As argued by the European Court of Justice in Associação Sindical Dos Juízes Portugueses, this is the very foundation of the mutual trust and mutual recognition between the Member States, and in particular the Member State courts 38 . If the constitutional identities of the Member States are incompatible with Article 2 TEU, there is an open constitutional conflict in the European Union, which presents a fundamental threat to the persistence of constitutional tolerance. 

The European Union, as is the case for other federations, cannot allow the Member States to conduct their constitutional affairs in a way that threatens or undermines the constitutional order and unity of the Union. It is therefore necessary for a federation, including the European Union, to restrict the constitutional autonomy of its Member States de jure, or at least ensure that it is not exercised in an unlimited manner de facto. At the same time, however, this limitation cannot be understood as an intrusion into the constitutional autonomy of the Member States. That would undermine the Union’s commitment to the diversity and autonomy of its Member States. The constitutional autonomy of the Member States therefore presents the European Union with a conundrum: how can the Union balance the commitments to unity and diversity when what is at stake is the constitutional autonomy and identity of its Member States? How can the Union limit the constitutional autonomy of its Member States without that being perceived as an illegitimate intrusion into the internal constitutional affairs of the Member States?

An important way to square the circle is to make sure that the Union is understood as a means to the constitutional realisation of the Member States. In this way, the necessary limitation of the constitutional autonomy of the Member States can be understood as a means to realising their own constitutional projects, and hence not an unwarranted intrusion into their own constitutional affairs. The brilliant argument advanced by the Federalists in favour of the ratification of the 1787 Constitution of the United States was that only a ‘more perfect union’ would allow the States to realise republicanism and the spirit of the American Revolution 39 . Sovereignty, and a ‘European system’ of sovereign states, they argued, would undermine the republican project. For that reason, the Union would save the States from themselves by barring them from exercising sovereign power 40 . The Union, the Federalists argued, was a means for the realisation of the republican form of government in the States and hence the necessary limitation of constitutional autonomy was a means to constitutional realisation. The States could fulfil their republican destiny through the perfection of the Union 41 .

In the European Union, the post-fascist constitutional project of ‘constrained democracy’ has played a similar role. European integration was understood as a means to realising the post-WWII constitutional project at the domestic level by the creation of a new ‘post-sovereign’ interstate European order that could overcome the dangers and instabilities of the nation-state. European integration heralded a ‘spiritual renewal’ for a new generation of Europeans that would transcend the horrors of the nation-state. This is especially clear in the speeches of the first Chancellor of West Germany, Konrad Adenauer : 42

The age of national states has come to an end. Everybody must feel that a change has taken place, that an era has vanished and that a new age is dawning in which men will look beyond the borders of their own country and work in fraternal cooperation with other nations for the true aims of humanity. Whoever fails to realize this is beyond help. This very task and the construction of a Europe dedicated to this goal afford a great mission for German youth. And when this Europe, this new Europe, is built, our young people will once more find scope for active and peaceful lives. We in Europe must break ourselves of the habit of thinking in terms of national states (…) An age of peace and cooperation will dawn only when nationalist ideas are banned from politics. Here in Europe, we have made a start in that direction by building plans for European unity.

By creating a new European interstate order that went beyond the world of the nation-state, the project of European integration could ‘lock-in’ liberal democratic values and fundamental rights 43 , as well as a competitive market economy, and thereby protect the Member States from the ‘dangers’ of unconstrained democratic choice. Entrenchment at the EU level, preferably in addition to entrenchment in the constitutions of the Member States, could allow for the realisation of constrained democracy and value order constitutionalism both at the domestic and at the European level. The limitation of the constitutional autonomy of the Member States by EU law was not perceived as a problem as long as it contributed to the overall constitutional project of value order constitutionalism. In the Solange cases, therefore, the German Constitutional Court found it constitutionally permissible for EU law to override domestic law as long as fundamental rights and human dignity were protected by EU law to the same standard as they were protected by the German Basic Law 44 .

While the constitutional project of constrained democracy has been strongly influential in many of the core Member States, most importantly Germany and Italy, as well as in the Mediterranean Member States who joined the European Union in the 1980s after the collapse of authoritarianism – Greece, Portugal and Spain –, its influence in other Member States is less clear. As I have demonstrated elsewhere, the Member States of the European Union are characterised by ‘varieties of constitutionalism’ 45 . This has to do with the Member States’ diverse historical experiences in the 20th century as well as the radically different constitutional lessons drawn from the interwar breakdown, World War Two and the Cold War. European constitutionalism, in other words, is not uniform; nor are the Member States constitutionally homogenous. To put it in simple terms: notwithstanding that all the Member States would describe themselves as constitutional democracies, democracy does not have a uniform constitutional meaning. 

The Member States of the European Union are shaped by at least three ‘varieties of constitutionalism’ – ‘post-fascist constitutionalism’, ‘evolutionary constitutionalism’ and ‘post-communist constitutionalism’ – each with a different constitutional conception of democracy 46 . Whereas it is widely recognised that the United Kingdom – and to that I would add the Scandinavian Member States – is characterised by ‘evolutionary constitutionalism’ in which democracy is still understood in procedural terms, as the more or less unconstrained will of Crown-in-Parliament, constitutional scholarship has been less observant of what sets many of the post-communist Member States apart from the ‘post-fascist’ Member States like Germany, Italy and Spain. The post-fascist Member States tend to understand the rise of authoritarianism or fascism as endogenous: fascism was a product of the internal collapse of the constitutional order. The post-communist Member States tend to understand their experience of authoritarianism or totalitarianism as exogenous: totalitarianism was imposed on them by a foreign empire. To put it in simple terms: the communist were always ‘them’ and not ‘us’. In contrast to the post-fascist Member States, the post-communist regimes are for that reason not founded on a fear of their own peoples.

The constitutional project that the post-communist Member States aspired to realise through membership in the European Union therefore differs from that of the post-fascist Member States. Whereas the post-fascist Member States actively sought to overcome the dangers of sovereignty and nationalism via EU membership by means of a ‘transnational militant democracy’ 47 , the post-communist Member States acceded to the European Union in the hope of securing their status as sovereign nation-states and to realise a constitutional project centred on the sovereign will of the nation. In other words, they aspired to realise the world that post-fascist constitutionalism aspired to overcome: a Europe of sovereign nation-states. For the post-communist states, sovereignty and nationalism were not perceived as existential threats to democracy but on the contrary vehicles for it 48 . For the post-communist states, ‘returning to Europe’ meant national liberation and the return of a sovereign, national democracy 49 . Because of the experience of being satellite states of the Soviet Union, often propped up by façade constitutions, the post-communist states were keen to avoid a new form of imperialism by legal means. The nation, and national democracy, had to be protected from outside influence. As a rule, therefore, they did not constitute themselves as ‘open’ to international or European law 50 .

From the very beginning, the constitutional project that many of the post-communist Member States were seeking to realise via their membership in the European Union was therefore characterised by a fundamental contradiction. Membership in the European Union was a means to realising sovereign democracy at the national level. Yet at the same time, membership in the European Union entailed a limitation of national sovereignty in that it required the new Member States to govern themselves as constrained democracies. EU law compelled the post-communist Member States to govern themselves in accordance with post-sovereign constitutionalism by constraining the exercise of political power. In the post-communist Member States, membership in the European Union was therefore always looked upon with suspicion, as a potentially new empire, a new threat to democracy 51 . This is an important underlying reason for our current constitutional predicament.

In the European Union, democracy means constrained democracy. Yet this is not the case for all the Member States of the European Union. To put it bluntly, democracy is not understood as a constitutional value that can be balanced against other values by a constitutional court within all the Member States’ constitutional orders. For that reason alone, there are limits to the constitutional balancing that can be achieved by the employment of value order constitutionalism by Europe’s lawyers and judges. At a more fundamental level, however, it is unlikely that profound constitutional crises can be resolved by courts in the first place. As Clinton Rossiter put it: ‘If a situation can be dealt with judicially, it is probably not a crisis’ 52 .

Notes

  1.  Joseph HH Weiler, ‘Federalism Without Constitutionalism: Europe’s Sonderweg’ in Kalypse Nicolaïdis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford University Press 2001) 67.
  2.  Albert V Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund 1982) 75. For a broader discussion of the constitutional theory of the federation, see Olivier Beaud, Théorie de la fédération (Presses universitaires de France 2007); Christoph Schönberger, Unionsbürger: Europas föderales Bürgerrecht in vergleichender Sicht (Mohr Siebeck 2005); Signe Rehling Larsen, The Constitutional Theory of the Federation and the European Union (Oxford University Press 2021).
  3.  Dicey (n 2) 76.
  4.  ‘The aim of federalism’, Dicey (ibid 76) wrote ‘is to give effect as far as possible to both these sentiments’.
  5.  Joseph HH Weiler, ‘Europe: The Case Against the Case for Statehood’ (1998) 4 European Law Journal 43; Jürgen Habermas, The Postnational Constellation: Political Essays (Polity in association with Blackwell Publishers 2001). See also Jürgen Habermas, The Crisis of the European Union – A Response (Polity Press 2012).
  6.  In Neil MacCormick’s (‘Beyond the Sovereign State’ (1993) 56 The Modern Law Review 1, 16.) memorable terms, sovereignty was ‘like virginity, which can in at least some circumstances be lost to the general satisfaction without anybody else gaining it’.
  7.  MacCormick, ‘Beyond the Sovereign State’ (n 6); Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford University Press 1999).
  8.  Weiler (n 1) 68ff.
  9.  ibid 68.
  10.  The seminal case is the Maastricht judgement by the German Constitutional Court, Brunner v European Union Treaty (Case 2 BvR 2134/92 and 2959/92 JZ 1993, 1100) [1994] 1 CMLR 57. The Danish Constitutional Court, however, produced a similar judgement. For a discussion, see Hjalte Rasmussen, ‘Denmark’s “Maastricht-Ratification” Case: The Constitutional Dimension’ (1997) 32 Irish Jurist (1966-) 77; Hjalte Rasmussen, ‘Denmark’s Maastricht Ratification Case: Some Serious Questions about Constitutionality’ (1998) 21 Journal of European Integration 1. 
  11.  Neil MacCormick, ‘The Maastricht-Urteil: Sovereignty Now’ (1995) 1 European Law Journal 259.
  12.  For an overview, see Matej Avbelj and Jan Komárek, Constitutional Pluralism in the European Union and Beyond (Hart Publishing Limited 2012).
  13.  Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; Re Wünsche Handelsgesellschaft (22 October 1986) BVerfGE 73, 339
  14.  For a conceptual discussion of constitutional courts in the deliberative democracy framework, see Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (Oxford University Press 2013).
  15.  C-62/14 Gauweiler and Others [2015] ECLI:EU:C:2015:400; C-493/17 Weiss and Others [2018] ECLI:EU:C:2018:1000; BVerfG, Judgment of the Second Senate of 21 June 2016— 2 BvR 2728/ 13; BVerfG, Judgment of the Second Senate of 05 May 2020— 2 BvR 859/ 15. There are several other recent examples of contestations of the supremacy of EU law that raised concerns in Brussels. For instance, in the arguments submitted to the Conseil d’Etat in the French Data Network case, the French government requested that the Conseil d’Etat ignore the La Quadrature du Net ECJ judgment (see, c-511/18 La Quadrature du Net and Others [2020] ECLI:EU:C:2020:791) on ultra vires grounds; while the Conseil d’Etat rejected the argument, it still stated clearly the supremacy of the French Constitution over EU law and reserved the right to disregard any regulation or directive that would deprive of efficient guarantees one of the constitutionally protected rights (see, CE French Data Network et al. 21 April 2021, nos. 393099, 394922, 397844, 397851, 424717 and 424718). Another example is that of the decision of 8 June 2021 of the Romanian Constitutional Court, which acknowledges that national courts are competent to disregard any provision of the domestic legislation that is contrary to EU law, by virtue of Article 148 of the Romanian Constitution, but also immediately stated that the Romanian Constitution retains its supremacy, concluding that “a national court does not have the power to analyse the conformity of a disposition of internal law, declared constitutional by virtue of Article 148 of the Constitution, with European law provisions” (see, decision no. 309 of the Romanian Constitutional Court of 8 June 2021).
  16.  Polish Constitutional Court, Decision of 7 October 2021, No. K 3/21.
  17.  It should be noted that Poland is not the first Member State to contest the constitutional aim of a ‘ever closer union’. In the EU reform deal struck in order to keep the UK in the EU, but later made redundant by Brexit, David Cameron managed to secure an opt-out from the ‘ever closer union’, see The European Council, Conclusions from  the European Council meeting,  Brussels, 18–19 February 2016, EUCO 1/16, CO EUR 1, CONCL 1 http://docs.dpaq.de/10395-0216-euco-conclusions.pdf Now that Brexit is a reality, we will never know what this would have meant in practice and whether it, in any way, would have made a difference to the constitutional position of the UK in the EU.
  18.  The European Central Bank has insisted that it is ‘exclusively subject to the jurisdiction of the Court of Justice of the European Union and accountable to the European Parliament’, see ECB Speech, ‘In the spirit of European cooperation’, Introductory remarks by Yves Mersch, Member of the Executive Board of the ECB and Vice- Chair of the Supervisory Board of the ECB, at the Salzburg Global webinar’ (Salzburg Global webinar, 2 July 2020) <https:// www.ecb.europa.eu/ press/ key/ date/ 2020/ html/ ecb.sp200702~87ce377373.en.html> 
  19.  Court of Justice of the European Union, ‘Press Release No 192/21 Luxembourg, 27 October 2021 Order of the Vice-President of the Court in Case C-204/21 R Commission v Poland’ <https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-10/cp210192en.pdf>.
  20.  European Commission, ‘European Commission Reaffirms the Primacy of EU Law’ (European Commission – European Commission, 7 October 2021) <https://ec.europa.eu/commission/presscorner/detail/en/statement_21_5142> accessed 25 October 2021. [COMPLETE REF TO INTERVIEW REYNDERS]
  21.  European Parliament, ‘Press Release: Poland: Constitutional Tribunal Is Illegitimate, Unfit to Interpret Constitution’ (21 October 2021) <https://www.europarl.europa.eu/news/en/press-room/20211015IPR15016/poland-constitutional-tribunal-is-illegitimate-unfit-to-interpret-constitution> accessed 25 October 2021.
  22.  See, eg, R Daniel Kelemen and Laurent Pech, ‘The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland’ (2019) 21 Cambridge Yearbook of European Legal Studies 59; Federico Fabbrini, ‘After the OMT Case: The Supremacy of EU Law as the Guarantee of the Equality of the Member States The CJEU’s OMT Decision’ (2015) 16 German Law Journal 1003.
  23.  As the political elite in the early American Republic recognised, ‘no constitutional or legalistic device could save the republic, unless the underlying real forces could be kept in equilibrium’, see John Fischer, ‘Prerequisites of Balance’ in Arthur W MacMahon (ed), Federalism: Mature and Emergent (Doubleday & Company 1955) 63. 
  24.  Neil MacCormick’s analysis, e.g., was first and foremost empirical. He considered and rejected legal monism in the European Union with reference to ‘sociological realism’, see MacCormick, ‘The Maastricht-Urteil’ (n 11) 264.
  25.  Michael Wilkinson, ‘Beyond the Post-Sovereign State?: The Past, Present, and Future of Constitutional Pluralism’ (2019) 21 Cambridge Yearbook of European Legal Studies 6, 17.
  26.  Leslie Goldstein, Constituting Federal Sovereignty: The European Union in Comparative Context (Johns Hopkins University Press 2001).
  27.  Martin Diamond, ‘The Ends of Federalism’ (1973) 3 Publius 129.
  28.  Beaud (n 2) 279ff; Larsen, The Constitutional Theory of the Federation and the European Union (n 2) 105ff.
  29.  Alain-G Gagnon, ‘The Political Uses of Federalism’ in Michael Burgess and Alain-G Gagnon (eds), Comparative Federalism and Federation: Competing Traditions and Future Directions (Harvest Wheatsheaf 1993).
  30.  C-487/19 W. Ż. () and des affaires publiques de la Cour suprême – nomination) [2021] ECLI:EU:C:2021:798; C-824/18 A.B. and Others (Nomination des juges à la Cour suprême – Recours) [2021] ECLI:EU:C:2021:153; C-585/18 A.K. (Independence of the Disciplinary Chamber of the Supreme Court) [2019] ECLI:EU:C:2019:982
  31.  C-824/18 A.B. and Others (n 30) para 150.
  32.  Jan-Werner Müller, ‘Protecting the Rule of Law (and Democracy!) In the EU: The Idea of a Copenhagen Commission’ in Carlos Closa and Dimitry Kochenov (eds), Reinforcing Rule of Law Oversight in the European Union (Cambridge University Press 2016) 221, emphasis in original.
  33.  Jan-Werner Müller, Contesting Democracy: Political Ideas in Twentieth-Century Europe (Yale University Press 2011); Martin Loughlin, ‘The Silences of Constitutions’ (2018) 16 International Journal of Constitutional Law 922.
  34.  Signe Rehling Larsen, ‘The European Union as “Militant Democracy”?’ (iCourts Working Papers series 2021) <https://papers.ssrn.com/abstract=3761791> accessed 22 January 2021.
  35.  Christoph Möllers, ‘“We Are (Afraid of) the People”: Constituent Power in German Constitutionalism’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press 2008); Michael A Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (Oxford University Press 2021).
  36.  Hjalte Lokdam, ‘Banking on Sovereignty: The Political Theory of Central Bank Independence and the European Central Bank’ (PhD, London School of Economics and Political Science 2020).
  37.  Alexander Somek, The Cosmopolitan Constitution (Oxford University Press 2014).
  38.  C-64/ 16 Associação Sindical Dos Juízes Portugueses [2018] ECLI:EU:C:2018:117, para 30. 
  39.  Cathy D Matson and Peter S Onuf, A Union of Interests: Political and Economic Thought in Revolutionary America (University Press of Kansas 1990) 138.
  40.  ibid.
  41.  ibid 141.
  42.  Konrad Adenauer, World Indivisible – With Liberty and Justice for All (George Allen & Unwin Ltd 1956).
  43.  Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe’ (2000) 54 International Organization 217.
  44.  C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970); Re Wünsche Handelsgesellschaft (22 October 1986) BVerfGE 73, 339
  45.  Signe Rehling Larsen, ‘Varieties of Constitutionalism in the European Union’ (2021) 84 The Modern Law Review 477. See also Bruce Ackerman, ‘Three Paths to Constitutionalism – and the Crisis of the European Union’ (2015) 45 British Journal of Political Science 705.
  46.  Larsen, ‘Varieties of Constitutionalism in the European Union’ (n 45). It should be noted that the three ideal types cannot explain the constitutional developments of all the Member States in the EU. France, for example, cannot be understood based on either of these ideal types.
  47.  Ulrich Wagrandl, ‘Transnational Militant Democracy’ (2018) 7 Global Constitutionalism 143.
  48.  Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (Oxford University Press 2012) 67ff.
  49. Timothy Snyder, ‘Memory of Sovereignty and Sovereignty over Memory: Poland, Lithuania and Ukraine, 1939–1999’ in Jan-Werner Müller (ed), Memory and Power in Post-War Europe (Cambridge University Press 2002).
  50.  Many, if not most, of the Central and Eastern European countries gave themselves constitutions with a strong accentuation of both ‘internal’ and ‘external’ sovereignty of the nation after the fall of the Soviet Union, see Anneli Albi, ‘Postmodern Versus Retrospective Sovereignty: Two Different Discourses in the EU and Candidate Countries?’ in Neil Walker (ed), Sovereignty in Transition (Hart Publishing 2003); Cesary Mik, ‘State Sovereignty and European Integration: Public International Law, EU Law and Constitutional Law in a Polish Context’ in Neil Walker (ed), Sovereignty in Transition (Hart Publishing 2003).
  51.  Jan Zielonka, Europe as Empire: The Nature of the Enlarged European Union (Oxford University Press 2006).
  52.  Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press 1948) 9.
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