Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

Women's Political Representation in the European Union

Feminist studies of the European Union seek to make sense of a field that has become enormously complex. Gender equality has been an issue in the EU since the inclusion of Article 119 on equal pay in the Treaty of Rome 1957 but has since widened to the recognition of equality between women and men as a fundamental principle of democracy for the whole EU. Gender equality is present both in gender-specific policies, such as women's participation in the labour market, sexual harassment and reconciliation of work and family, as well as informing the basic principles and functioning of the EU institutions wherever gender mainstreaming is implemented. Feminist explorations of the EU have tended to overlook one aspect of EU gender policies: women's political representation in the EU institutions. This article seeks to address this gap.     

How can one be European? Reflections on the Pillars of European Civic Identity

Abstract:  The citizenship of the EU is not only a set of rights, but also of civic behaviours and representations. In this article, I analyse these moral and sociological foundations of EU citizenship, stressing the limits of classic interpretations in terms of 'identification to' or 'support for' the EU. Instead, I suggest reading the evolution of EU citizenship as a process of political recognition. Such an analytical framework, inspired by recent works of Axel Honneth and Paul Ricoeur, leads one to understand this process as a threefold evolution: critical assessment of one's own national identity; transformation of the perception of other nationalities; and identification to the EU. Such a reading also compels us to pay attention to the limits of these processes: mutual recognition is an unending process which does not exclude the persistence of nationalistic reactions, hegemonic temptation and the revival of xenophobic attitudes vis-à-vis other Member States and third countries. I conclude that any project to render EU identity thicker needs to take care of the risk of jeopardising the fragile acquis.     

Constitutions,Constitutionalism, and the European Union

The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The difficulties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.     

Quasi-National European Identity and European Democracy

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.     

'Solange, chapter 3': Constitutional Courts in Central Europe—Democracy—European Union

Abstract: Soon after the accession of eight post‐communist states from Central and Eastern Europe to the EU, the constitutional courts of some of these countries questioned the principle of supremacy of EU law over national constitutional systems, on the basis of their being the guardians of national standards of protection of human rights and of democratic principles. In doing so, they entered into the well‐known pattern of behaviour favoured by a number of constitutional courts of the ‘older Europe’, which is called a ‘Solange story’ for the purposes of this article. But this resistance is ridden with paradoxes, the most important of which is a democracy paradox: while accession to the EU was supposed to be the most stable guarantee for human rights and democracy in post‐communist states, how can the supremacy of EU law be now resisted on these very grounds? It is argued that the sources of these constitutional courts’ adherence to the ‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their position vis‐à‐vis other national political actors, especially at a time when the role and independence of those courts face serious domestic challenges.     

A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law

Whilst the European Union or Community is not a state and does not possess a political constitution in the sense of a series of irrevocable norms existing prior to and above Community or Union law, the evolution of the European legal system might nonetheless be regarded as a fundamental constitutional process. In this light, primary and secondary European law, together with the jurisprudence of the ECJ, might be said to be subjectivising certain specifically European principles thus contributing to the legal creation of sometimes novel rights for European Citizens. In a legal process similar to that seen within 19th Century Germany, European law is seeking a compensate for an incomplete political constitution through the development of a – second best – European Charter for Citizens.     

Legal Education,Institutional Skills and European Union Opinions

A cluster of issues in the context of legaleducation shows the importance of legalsemiotics: new forms of citizenship, new ideas on e-education, the recent design ofe-educational programs that focus the featuresof institutional life, the concept of a`learning society' are this cluster's elements.Opinions of European Union Institutions stimulate to conceive modern society in thelight of these issues. It leads to theformulation of a fifth freedom in the Union,(after freedom of persons and goods, servicesand capital) which is the freedom toparticipate in a ``learning society'. Thepractice of that freedom leads to developinge-educational programs for institutionalskills.     

制度认同与政治合法性

在现代社会,政府与公民、公民与公民之间的一切关系都以非人格化的制度为中介,作为政治权力具体表征的各项法律和政策能否获得社会认同,就成为政治合法性的基本判准.制度认同不是盲目的,也不是被迫的,而是建基于认知性期待与规范性期待统一之上的实践证成过程.一切影响和制约人们对制度的认知性期待形成、制度实施效果的因素以及影响每个人规范性期待形成的公民素质,都会对制度认同的形成产生影响,并规定着制度认同建构的可能路径.     

Constitutional Principle,the Rule of Law and Political Reality: The European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 is the cornerstone of UK legislation designed to accomplish the legal dimension of Brexit. It brings the entire acquis of EU law into UK law in order to avoid regulatory black holes that would otherwise occur. The Act embodies a twofold legislative strategy: EU law brought into UK law thereby is to be made fit for purpose by exit day, with necessary changes being made by statutory instrument; Parliament can then decide at greater leisure thereafter whether it wishes to retain, amend or repeal this legislation. The burden placed on Parliament is unprecedented, all the more so given the exigencies of time in which the changes are to be made. This article explicates the principal provisions of the 2018 Act, and the concerns as to constitutional principle and the rule of law raised by the legislation. The tensions in the drafting process are made apparent, and uncertainties in the resulting text are revealed.     

International Migration and the European Union, Trends and Consequences

Member States of the European Union (EU) have undoubtedly changed into de facto countries of immigration. Since the upswing in migration in the late 1980s, net migration for the 15 EU Member States together has not been below 500,000. This article first focuses on trends in international migration (such as migration from former colonies, recruitment of temporary workers, and East-West migration) and special groups of immigrants (such as ethnic Germans, asylum seekers, and clandestine migrants). The second part of the article pays attention to immigrant settlement and migration policies, especially focusing on the European Union (trafficking and smuggling of humans, and the integration of migrants on the labour market). Detailed comparison of international migration flows is seriously hindered by a complexity of different national registration systems, and different countries display differences with regard to type and history of migration, country of origin, size of migration flows and immigrant populations.     

Mapping Human Rights, Reading the European Union

Abstract: The EU's human rights policy has provoked increasing scholarly attention over the last decade. Yet rarely has it been subjected to rigorous analysis in the context of any integration theory. This article is an attempt to rectify the omission. By building on the approach of historical institutionalism, whilst at the same time recognising its analytical deficiencies, a method of reading the EU and interpreting its human rights policies is promoted. Specifically, the article contends that an analysis based on the textual nature of the EU and the configuration of this text through ‘institutional narrative’ will enable a better understanding of the institutional logic behind the construction of human rights policy. An agenda for research and analysis is thus suggested that might map the development of human rights in the EU and predict the compass of future policy direction more effectively.     

A Political Economy Perspective of Judicial Review in the European Union: Judicial Appointments Rule, Accessibility and Jurisdiction of the European Court of Justice

The paper examines the benefits the sovereign member states of the EU expect to derive by granting the European Court of Justice the power to review the collective policy making decisions of the EU legislative bodies. Using the methodology of constitutional political economy it investigates the one-country one-judge rule of judicial appointments in the ECJ, the restrictions imposed on litigants to access the ECJ and the limits on the jurisdiction of the ECJ to review EU legislation. It also analyses how the presence of judicial review affects the size of the policy measures taken by the policy makers.