The Embedded Acquis Communautaire: Transmission Belt and Prism of New Governance

The European Union offers crucial insights into the gradual shift from a Weberian form of modern 'government' towards the institutionalisation of post-Weberian 'governance'. The article argues that the emerging 'polity of polities' context, not only threatens the constitutional basis of democratic rule but also raises the questions of what exactly the new institutions of governance beyond the nation-state are, and what they imply for the functioning (rules of the game) and legitimacy (democratic processes) of the political order. In an effort to elaborate on these questions, the article develops two themes. First, it raises critical questions about the conceptual boundedness of 'governance' in the discussion of constitutional and policy studies within the field of European integration. Secondly, it advances a methodological access point for the study of the institutionalisation of governance in the Euro-polity. It suggests situating the legal concept of acquis communautaire at the boundary of legal studies and politics. The concept is then applied to a case study of citizenship policy in the EU to demonstrate how the acquis communautaire–more precisely, the 'embedded acquis communautaire'–facilitates methodological access to the study of the institutionalisation of governance beyond the state and despite states.     

EU citizenship and (fundamental) rights: Empirical,normative, and conceptual problems

There is a close connection between EU citizenship and rights, both in the law and literature. This article claims that EU lawyers' understanding of EU citizenship and rights suffers from empirical, normative, and conceptual shortcomings. I will point out that there has been insufficient awareness for the boundedness of EU citizenship, the political structure of the EU and the constraints this (realistically) imposes on the ‘meaningfulness’ of EU citizenship. EU citizenship must not be understood as requiring an elaborate set of equal rights for all Union citizens throuzghout the EU, but valued for its ability to allow its status holders to enjoy (almost) full membership in the Member States of which they do not possess nationality.     

Gender Equality, Citizenship, and the EU's Constitutional Future

Abstract:  While gender equality has been a matter of some concern for EU law and policy makers over the past half century, this concern has tended, at least historically, to focus upon equal treatment in employment and has not yet materialised into the delivery of a broader package of civil, political, and social rights for women. Taking the concept of EU citizenship as a framework within which to view the promotion of gender equality, this article assesses the debate on the constitutional future of the EU. This is with a view to examining the possible amelioration of women's social position through the exploitation of opportunities that the constitutionalisation of EU law presents. Looking at women's citizenship through the lens of political rights to participate in the debate on the EU's future, together with examining substantive aspects of the Constitutional Treaty for their gender equality content, the article suggests that a more comprehensive endeavour by all institutional actors to engage in gender mainstreaming is needed in order to give effect to a broader form of equality between women and men.     

The Aporia of EU Citizenship

EU citizenship finds itself in but a deadlock. Certainly no longer being just a symbol of European integration but still far away from a meaningful status of its holders, Union citizenship fails to find its place in the legal landscape of the EU. Having sketched out the current state of EU citizenship and some of its outstanding problems, this article suggests to analyse Union citizenship anew and free from the constraints of legal methodology. In order to do that, this piece employs the works of Jacques Derrida and, on the background of his views on Europe, deconstructs EU citizenship unravelling its aporia.

     

Multiple Sovereignty: On Europe's Self-Constitutionalization and Legal Self-Reference

This article focuses on theoretical reflections on sovereignty and constitutionalism in the context of the globalization and Europeanisation of the nation states, their politics, and legal systems. Starting from a critical assessment of the Kelsen-Schmitt polemic, the author claims that sovereignty needs to be analysed by the sociological method in order to disclose its current structural differentiation. The constitution of society may be imagined as the multitude of self-constituted and functionally differentiated social subsystems. The constitutional pluralism argument subsequently reconceptualizes sovereignty as socially differentiated and divided between specific subsystems. The EU's differentiated constitutional domain and the paradox of divided sovereignty are used as examples of profound structural and semantic changes in contemporary national and transnational societies. While the sovereign nation-state institutions have become marginalized in political structures of European societies, the self-constitutionalization of the functionally differentiated EU legal system proceeds by internalizing the concept of divided sovereignty and using it semantically as its mode of self-reference.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

The Lisbon Judgment of the German Constitutional Court,the Primacy of EU Law and the Problem of Kompetenz‐Kompetenz: A Conflict between Right and Right in Which There is No Praetor1

The ECJ has long asserted its Kompetenz‐Kompetenz (the question of who has the authority to decide where the borders of EU authority end) based on the Union treaties which have always defined its role as the final interpreter of EU law. Yet, no national constitutional court has accepted this position, and in its Lisbon Judgment of 2009 the German Constitutional Court (FCC) has asserted its own jurisdiction of the final resort' to review future EU treaty changes and transfers of powers to the EU on two grounds: (i) ultra vires review, and (ii) identity review. The FCC justifies its claim to constitutional review with reference to its role as guardian of the national constitution whose requirements will constrain the integration process as a standing proviso and limitation on all transfers of national power to the EU for as long as the EU has not acquired the indispensable core of sovereignty, i.e. autochthonous law‐making under its own sovereign powers and constitution, and instead continues to derive its own power from the Member States under the principle of conferral. Formally therefore, at least until such time, the problem of Kompetenz‐Kompetenz affords of no solution. It can only be ‘managed’, which requires the mutual forbearance of both the ECJ and FCC which both claim the ultimate jurisdiction to decide the limits of the EU's powers—a prerogative which, if asserted by both parties without political sensitivity, would inevitably result in a constitutional crisis. The fact that no such crisis has occurred, illustrates the astute political acumen of both the FCC and the ECJ.     

The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union

Abstract The concept of citizenship is analysed on three seemingly contradictory levels: its integration by the recent case law of the European Court of Justice into the existing free movement acquis, its restriction in the accession treaties with new Member States concerning free movement of workers, and its redefinition by new Member States themselves. The result is a somewhat blurred picture: While the European Court of Justices uses citizenship to fill gaps left by primary and secondary law mostly with regard to non‐discrimination, the accession treaties have allowed a ‘re‐nationalisation’ of free movement, against the promises of equality inherent in the citizenship concept, which also includes nationals from new Member countries. The concept of citizenship itself in new Member countries, as the examples of Latvia and Estonia on the one hand, and Hungary on the other demonstrate, is very much related to the (somewhat sad) lessons of the past and therefore highly politicised; it has not been shaped with regard to free movement in the EU. The author suggests a gradual ‘communitarisation’ of citizenship itself even though the EU seems to miss competence in this area, for example, by paying greater attention to residence as basis for Community rights.     

The Right to Have What Rights? EU Citizenship in Need of Clarification

This paper provides a brief critical overview of the recent EU citizenship case‐law of the Court of Justice including Rottmann, Ruiz Zambrano, McCarthy and Dereci. While these cases open a number of new avenues of fundamental importance for the development of EU law, they also undermine legal certainty and send contradictory signals as to the essence of the EU citizenship status and the role it ought to play in the system of EU law. Most importantly, the Court's reluctance to specify what is meant by the ‘essence of rights’ of EU citizenship potentially has disastrous consequences following its own determination that such rights play a crucial role in moving particular factual constellations within the material scope of EU law. The substance and meaning of such rights is however left in suspense to harmful effects. An urgent clarification is needed.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

Shifting Boundaries of Membership: The politicisation of free movement as a challenge for EU citizenship

This article discusses freedom of movement under the lens of shifting boundaries of membership and traces the tension between the political and the economic rationale of European integration. It first reflects on the normativity of free movement and links it to the foundations of modern democratic citizenship. Subsequently, it discusses the role of free movement in the construction of EU citizenship and argues that the genesis in market integration casts a long shadow which hinders EU citizenship's potential to fully display the logic of political and social equality. Under current conditions of huge wealth discrepancies between member states, the prevailing form of horizontal integration necessarily brings about a tension between mobility and solidarity, which in turn creates a barrier for further developing EU citizenship. It is concluded that strengthening an intra‐European dimension of solidarity is needed in order to substantiate the right to move as an equal European citizenship right.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

Self‐Determination in the Constitutional Future of the EU

This article analyses three prominent proposals for the functional and political transformation of the EU from a constitutional perspective. It argues that existing EU reform proposals, to varying degrees, entrench rather than reverse the challenges to individual and political self‐determination brought about by the EU's response to its Euro crisis. As the article will conclude, challenging ‘authoritarian liberalism' in an EU context may require the development of a constitutional structure for the Union able to contest, rather than set in stone, the EU's existing economic and political goals.     

Constitutionalism and Dissonances: Has Europe Paid Off Its Debt to Functionalism?

Abstract The negative outcomes of the French and Dutch referenda on the Constitutional Treaty have opened a period of profound constitutional disenchantment in relation to the EU. This impression seems confirmed by the recent Presidency Conclusions of the European Council which, although salvaging many important solutions contained in the Constitutional Treaty, explicitly sanction that ‘the constitutional concept . . . is abandoned’. In the light of this context, what role could the constitutional scholarship play? How to make sense of a polity in which the claims of constitutionalism as a form of power are politically unappealing though legally plausible? This article tries to respond to these questions by reaffirming functionalism as a valid analytical and normative perspective in facing the current constitutional reality of European integration. The analytical value associated with functionalism is evidenced by testing against the current context of the EU legal framework the accounts for EU constitutionalism which postulate functional equivalence between the EU and the Member States. The normative potential of functionalism, then, is discussed by arguing that there may be a value worth preserving in a degree of functional discrepancy between the EU and state constitutionalism and, notably, that the transformative and civilising dividend inherent in functionalism could still be exploited, at least in certain areas of EU policy making. Finally, the article suggests that the difficulties in accounting for EU constitutionalism in the light of state‐centred constitutional theory could be regarded as symptoms of European integration marking a moment in the theoretical evolution of constitutionalism.     

Citizenship and the Biopolitics of Post-nationalist Ireland

In June 2004 voters in the Republic of Ireland endorsed a constitutional amendment to deprive children born on the island of Ireland of their previously automatic right to Irish citizenship. This change came amid increasing immigration and so-called 'baby tourism', whereby non-national mothers were alleged to be coming to Ireland to give birth for the sole purpose of bestowing Irish citizenship on their children. This article sets the referendum in its historical and contemporary context. Along with recent jurisprudence of the Irish Supreme Court, the amendment betokens a distinctive biopolitics orchestrated according to neo-liberal themes consonant with Ireland's membership of the European Union and its foreign direct investment strategy. As such, the amendment confirms the shift in Irish constitutional history from autarkic nationalism to cosmopolitan post-nationalism embodied in the Belfast Agreement of 1998.     

When EU Citizens become Foreigners

Although EU citizenship has matured as an institution, a combination of hope and caution ought to accompany the tale of its evolution. Contradictory processes of inclusion and greater equalisation coexist with exclusionary logics. These would have to be taken into account, and be addressed, by assessments of its present state and its future evolution. A focus on three key manifestations of state sovereignty, namely, the erasure of citizenship status, expulsion and the disappearance of individuals owing to extraordinary rendition, sheds light onto the edges of EU citizenship and the undesirable effects of untrammelled state power on the lives of individuals. Probing into the moments when EU citizens are treated as aliens or foreigners, and the troublesome ambiguities, tensions and limitations surrounding them, reveals the gaps in the protection of EU citizens and the constraints that stand in the way of change in the institutional scheme of things.     

‘Caminante,no hay camino,se hace camino al andar’1: EU Citizenship,Direct Democracy and Treaty Ratification

Abstract: This article argues that obligatory, simultaneous, and simple Treaty ratification by referenda is the next step in the consolidation of the political core of European citizenship. In the first part, general remarks about the special nature of EU citizenship highlight the relevance of referenda on EU Treaties for EU citizenship. In the second part, the normative and empirical case in favour of direct democracy is put forward. It is followed by the assessment of direct democracy in European integration as we have known it so far. The practice is irreversible and gaining in momentum. But it is in need of substantial reform due to procedural dysfunctions and discriminatory consequences for the citizens. Section V relates this result to a legal analysis of EU citizenship. The suppression of the discriminatory consequences of the Treaty ratification procedure is necessary from a legal point of view, but it cannot be expected from the ‘judicial incrementalism’ that has characterised the development of EU citizenship regarding free movement and residence. In section VI , the conclusions of the previous sections are drawn into the final proposal of obligatory, simultaneous and simple Treaty reform by referenda in all Member States. At the end, five counter‐arguments to the proposal are discussed.     

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.