Pluralism and Integrity

One of the theoretical developments associated with the law of the European Union has been the flourishing of legal and constitutional theories that extol the virtues of pluralism. Pluralism in constitutional theory is offered in particular as a novel argument for the denial of unity within a framework of constitutional government. This paper argues that pluralism fails to respect the value of integrity. It also shows that at least one pluralist theory seeks to overcome the incoherence of pluralism by implicitly endorsing monism. The integrity and coherence of European law is best preserved by considering that both the national legal order and the international or European legal orders adopt sophisticated views of their own limits.     

Pluralism,Deference and the Margin of Appreciation Doctrine

In this article it will be argued that good use of the instrument of deference might help the EU courts to deal with the situation of pluralism that is currently visible in the European legal order. By means of deferential judicial review, the EU courts can pay due respect to national constitutional traditions and to national legislative and policy choices, thus preventing situations of real conflict. In addition, deference enables the EU courts to take into account the intricacies related to judicial review of norms drafted by co‐equal institutions or by national elected bodies. Although the EU courts already make use of some form of deferential review, they may use the instrument in a clearer and more structured manner. As a basis for the development of a European ‘doctrine of deference’, a comparison will be made with the margin of appreciation doctrine devised by the European Court of Human Rights. Although this doctrine is certainly not fault‐free, it offers a number of advantages in terms of clarity and controllability. If improved and adapted on the basis of theoretical notions of procedural democracy, the doctrine might be put to good use by the EU courts.     

Another Look at Constitutional Pluralism in the European Union

Constitutional pluralism is a theory, or movement, or idea, for some perhaps even an ideal, about the relationship between the legal system of the European Union and those of its Member States. In this paper, Julio Baquero Cruz analyses its assumptions and implications in the light of historical experience and of the consequences it could have for the practice of law in Europe. To do so, constitutional pluralism is compared with the other main positions about that relationship: the national constitutional position and the position of Union law.     

Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space*

Constitutional pluralism has become a principal model for understanding the legal and political structure of the European Union. Yet its variants are highly diverse, ranging from moderate “institutional” forms, closer to constitutionalist thinking, to “radical” ones which renounce a common framework to connect the different layers of law at play. Neil MacCormick, whose work was key for the rise of constitutional pluralism, shifted his approach from radical to institutional pluralism over time. This paper reconstructs the reasons for this shift—mainly concerns about political stability that also underlie many others' skepticism vis‐à‐vis radical pluralist ideas. It then seeks to show why such concerns are likely overdrawn. In the fluid, contested space of postnational politics, a common, overarching frame is problematic as it might inflame, rather than tame, tensions. Leaving fundamental issues open along radical pluralist lines may help to work around points of highly charged contestation and provide opportunities for resistance from less powerful actors.     

National Judges,Community Judges: Invitation to a Journey through the Looking‐glass—On the Need for Jurisdictions to Rethink the Inter‐systemic Relations beyond the Hierarchical Principle

The historical conflict between the European Court of Justice (ECJ) and the national constitutional courts regarding primacy is a misunderstanding. In going through the looking‐glass, we can understand that, on the contrary, the ECJ and the national constitutional courts adopt comparable solutions in their treatment of legal pluralism, and that they see the negation of pluralism as essential for the survival of their own legal orders. Therefore, these judges must be offered a new theoretical context to help them reconcile their role as supreme guardian with the taking into account of the pluralist context. Finally, practical proposals must be made to give judges the instruments and techniques that are capable of reflecting this plural structure.     

National Constitutional Courts in supranational litigation: A contextual analysis

The article examines the role of national constitutional courts in supranational litigation. It firstly illustrates their value and situates well‐known judicial doctrines affecting their jurisdiction in the context of the normative claims, policy agenda and institutional framework promoted by the European Union. Against this background, it gauges the potential of national constitutional courts in countering the process of intergovernmental and technocratic encroachment of national constitutional democracies characterising the most recent evolutionary stages of the European integration process. It is claimed that constitutional courts are in the position of reinforcing, resisting or correcting Union measures with a detrimental impact on national constitutional principles. After having identified in correction the approach more coherent with their constitutional mandate, the article highlights a disturbing paradox: in remaining faithful to their constitutional role, constitutional courts contribute to the sustainability of a comprehensive institutional setting corroding the idea of constitutional democracy on which they are premised.     

Game of courts: A tale of principles and institutions

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general principles of European Union law’ is far from being resolved. The constitutional interlocutors—the Court of Justice of the European Union and the highest courts in Member States—have at times fiercely argued about their different understanding of general principles, whereas European legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law. Instead of engaging with a more abstract, theoretical question of what general principles are, this paper reflects on the practical, functionalist question: how are they used by the Court of Justice and what are some of their functions and implications? To do so, it enquires into contextual, institutional and strategic features of the Court's behaviour and jurisprudence and responses of the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of the Court's jurisprudence on general principles.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

European integration and the french parliament: From ineffectual watchdog to constitutional rehabilitation and an enhanced political role

The development of the European Union is as much an opportunity as a threat to national parliaments. Our case study of the French Parliament suggests that as the process of integration has quickened in pace and broadened in scope, parliament has on successive occasions used the opportunity to strengthen its constitutional position with the introduction of Article 88‐4 and improve its capacity to scrutinise government through the adoption of a series of laws. Parliament now has the power to delay if not block the adoption of measures at European Union level by refusing to lift its scrutiny reserve. It is difficult to determine if parliament has significantly increased its influence over the government on European affairs, but it is now able to adopt potentially politically significant resolutions on all European Union issues which the government takes into account when negotiating in Union institutions. European integration has been a significant factor in the rehabilitation of the French Parliament.     

Directly-Deliberative Polyarchy

This essay by Joshua Cohen and Charles Sabel promotes visions of democracy, constitutionalism and institutional innovations which may help to open up new dimensions in the search for legitimate European governance structures and their constitutionalisation. Faced with Europe's legitimacy problems, proponents of the European project often react by pointing to the many institutional failings in the (national) constitutional state. These reactions, however, seem simplistic, offering no normatively convincing alternatives to the once undisputed legitimacy of a now eroding nation state. The essay by Cohen and Sabel forecloses such strategies. Summarising and endorsing critiques of both the unfettered market system and the manner of its regulatory and political correction, it concludes that the many efforts to establish new equilibria between well-functioning markets and well-ordered political institutions are doomed to fail, and opts instead for fundamental change: conservative in their strict defence of fundamental democratic ideals, such ideas are radical in their search for new institutional arrangements which bring democratic values directly to bear. How is the concept of directly-deliberative polyarchy complementary to and reconcilable with our notions of democratic constiutionalism? To this question the readers of the essay will find many fascinating answers. Equally, however, how might the debate on the normative and practical dilemmas of the European system of governance profit from these deliberations? Which European problem might be resolved with the aid of the emerging and new direct forms of democracy identified in this essay? How might direct democracy interact with the intergovernmentalist and the functionalist elements of the EU system? Although this essay contains no certain answers to these European questions, its challenging messages will be understood in European debates.     

Constitutional pluralism: Chronicle of a death foretold?

What remains of the idea of constitutional pluralism in the wake of the Euro‐crisis? According to the new anti‐pluralists, the recent OMT saga signals its demise, calling to an end the tense stalemate between the ECJ and the German Constitutional Court on the question of ultimate authority. With the ECJ's checkmate, OMT represents a new stage in the constitutionalisation of the European Union, towards a fully monist order. Since constitutional pluralism was an inherently unstable and undesirable compromise, that is both inevitable and to be welcomed. It is argued here that this is misguided in attending to the formal at the expense of the material dimension of constitutional development. The material perspective reveals a deeply dysfunctional constitutional dynamic, of which the judicial battle in OMT is merely a surface reflection. This dynamic now reaches a critical conjuncture, encapsulated in the debate over ‘Grexit’, and the material conflict between solidarity and austerity. Constitutional pluralism, in conclusion, may be an idea worth defending, but as a normative plea for the co‐existence of a horizontal plurality of constitutional orders. This requires radical constitutional re‐imagination of the European project.     

Politics and Rights: The Future of the EU from a European Perspective*

Abstract. Beyond Community political minimalism, citizenship, rights and States are today associated with new constitutional ambitions. In this connection this paper draws attention to the “unsaturated” character of national institutions, especially parliamentary institutions, and argues for a re‐elaboration of the classical European conceptions of rights in an institutional rather than a purely individualistic perspective.     

A Christian or a Laïc Europe? Christian Values and European Identity

Abstract.  European constitutional traditions share a commitment to freedom of conscience and religion, but differ on their interpretation of whether such freedoms do or do not require a clear cut separation of state and church. Weiler has advocated that the writing of a Constitution for the European Union is a very apt moment to reconsider the conceptualization of freedom of conscience and religion. On constitutional and historical grounds, he has advocated that a reference to Christian values should be made in the preamble of the European fundamental law, and that this will be the alternative most respectful to the pluralistic national solutions, ranging from republican non-confessionality to the establishment of an official church. But contrary to what Weiler argues, the drafting of the constitution of the European Union is not bound by the present shape of European constitutional traditions; moreover, it is hard to conclude that the present common constitutional traditions require an explicit reference to Christianity to be included in the text. Furthermore, the claim that the individual and collective identities of Europeans are unavoidably shaped by Christian values is only tenable if we uphold a rather simplistic relation between history, memory, and identity. Finally, once one moves from law and history to practical reasoning, one finds that there are good substantive reasons why our collective identity should not contain reference to Christian values.     

Independent Agencies: Hierarchy Beaters?

Abstract: The business of modern government is efficient policy-formation, regulation and implementation. In common with conventional Governments, the European Union may be facing a serious mismatch between the increasingly specialised functions of government and the administrative instruments at its disposal. Arguably, independent European Agencies might aid in combatting this mismatch, and in establishing efficient administration. Article 4 of the Treaty of Rome seems severely to curtail the possible use of independent agencies within Europe. Nevertheless, American constitutional experience may yet serve to demonstrate how this barrier might be overcome in the European setting: the development of novel and flexible means of governmental oversight might secure the independence of European agencies, whilst at the same time laying renewed emphasis upon traditional 'constitutional' principles such as the control of power and public accountability.     

Informal Circles of Ministers: A Way Out of the EU's Institutional Dilemmas?

This contribution argues that the particular relevance of informal circles of ministers lies in their ability to routinise and communise the process of the interpretation of constitutional norms at the intergovernmental level. The informal setting triggers a particular mode of interaction—deliberative intergovernmentalism. In the case of economic policy coordination among the euro–zone countries, which is analysed in this article, this interaction produces common standards for the assessment of the economic situation in the member states and guidelines on appropriate policy responses in particular budgetary and economic situations. In a situation, in which there is growing need for closer policy coordination but European Union member states are reluctant to transfer further decision–making competences to the supranational level, the mediation between diverging interpretations of the rather 'thin' formal constitutional norms governing the coordination process is crucial in order to ensure the overall stability of the coordination framework. Informal circles of ministers can therefore be a way out of the current institutional dilemmas arising from the attitude of national governments to move towards new areas of common engagement while being increasingly reluctant to transfer further formal decision–making competences to the supranational level.     

The Idea of a European Constitution

Any abstract account of a field of law must make generalizationsthat are both faithful to the legal materials and appropriateto the subject matter's aims. The uniqueness and fluidity ofthe European Union's institutions makes such generalizationsvery difficult. A common theoretical approach to EU law (onethat is often relied upon by the Court of Justice, the Parliamentand the Commission) is to borrow directly from the theory ofdomestic constitutional law. The most recent manifestation ofthis tendency is the draft Treaty on the European Constitution,which includes many of the symbolic features of a domestic constitutionalorder. But the European Union is not a state and the constitutionalanalogy is in many ways problematic. In this article I defendthe view that a more complex theory is more appropriate to theunique combination of ordinary politics with diplomatic conferencesthat constitutes the European Union. The key to these institutionsis, in my view, a Kantian international ideal of liberal peace.The foundational constitutional principles of the EU, principlesthat both fit the current legal framework and offer its mostattractive interpretation, require the qualified autonomy ofmember states in a union of republics that create collectiveinstitutions for the purposes of liberal peace.     

Representation in multilateral democracy: How to represent individuals in the EU while guaranteeing the mutual recognition of peoples

The democratic criteria for representation in the European Union are complex since its representation involves several delegation mechanisms and institutions. This paper develops institutional design principles for the representation of peoples and individuals and suggests reform options of the European Union on the basis of the theory of multilateral democracy. In particular, it addresses how the equality of individuals can be realised in EU representation while guaranteeing the mutual recognition of peoples. Unlike strict intergovernmental institutions, the EU requires an additional and independent legislative chamber in which individuals are directly represented. However, strict equality of individuals cannot be the guiding principle for this chamber. In order to avoid the overruling of peoples through supranational majorities, it is necessary to bind the chamber's composition by a principle of degressive proportionality. The representation of peoples, on the other hand, needs to be connected to their domestic democratic institutions.     

Constitutionalism,populism, and the imaginary of the authentic polity: a socio-legal analysis of European public spheres and constitutional demoicratization

The sociology of constitutionalism emphasizes the duality of constitutions as both power limitations and power enhancements. Following the socio-legal perspective, this article focuses on the constitutional imaginary of the public sphere and distinguishes it from the imaginary of the authentic polity, in which the constituent power of the people is protected against the corrupting effect of representative institutions and technocratic bodies. The promise of authenticity is behind the recent resurgence of populism and the constitution of what Zygmunt Bauman describes as ‘explosive communities’. The final part of the article focuses on the transnational politics and law of the European Union (EU) and discusses its possible responses to the imaginaries of constitutional populism – most notably, the emergence of European public spheres and demoicracy. Without the constitutional imaginaries of an anti-explosive transnational and democratically constituted community, further enhancement of the power of EU institutions will always lead to populist backlash at the national and local levels of its member states.     

Economic Policy Coordination as a Game Involving Economic Stability and National Sovereignty

The economic crisis has paved the way for reconsideration of the Eurozone's constitutional design. This paper shows that what may seem as a massive empowerment of European institutions at the cost of national economic sovereignty in actual constitutional practice has left economic policy coordination largely unchanged. By means of conceptualising its previous and current patterns as a game between supranational and national institutions, it is shown that the scale of change has been widely exaggerated. The new Eurozone design has mitigated in practice the extent to which national economic sovereignty has been undermined, but only at the cost of shifting to the European Central Bank the burden of shoring up the stability of the common currency; such burden the ECB is bound to prove unable to sustain in the long run.     

Appointing and Censuring the European Commission: The Adaptation of Parliamentary Institutions to the Community Context

The parliamentary model at the heart of European civic cultures has deeply influenced ‘Constitutional reforms’ in the European Community. But the EC is not a Parliamentary state and the transplant of national institutions in its own political context gives rise to hybrid practices. This paper examines this process of hybridation, and shows that new practices of appointment and censure are emerging in the Community, mixing classic parliamentary institutions with the crucial features of the EC itself. Focusing on recent tensions between the Council, the Commission, and the European Parliament, it shows that they are governed by national divisions, technocratic and legal reasoning rather than by classic majoritarian attitudes. It concludes that, while this new model of accountability might prove efficient in terms of inter‐institutional controls, it remains symbolically inefficient, because it does not help citizens understand and accept the Community institutional model.