Sunday, January 20, 2008

Questioning EU constitutionalisms

As the picture on the right side suggests, I have moved to New York for the spring semester, in order to work on a comparative part of my thesis at NYU School of Law as a Visiting Doctoral Researcher. I am looking forward to seeing how things are being done here, as compared to my home base, Oxford. And of course, hope to have fruitful discussions with new people I hope to meet here.

Before I will be able to post more information about the Symposium on constitutional pluralism that I co-convened with my colleague Matej Avbelj (I am now undertaking a painful exercise of transcribing the record that we intend to publish), let me draw your attention to Matej’s paper recently published in German Law Journal: “Questioning EU Constitutionalisms”. I had a chance to read its first draft that Matej presented at Oxford EC law Discussion Group last October and I found it very useful in getting the reader into the terms of the current EU constitutional debate. And if you want to question some assumptions you might have about European integration and its conceptual framework, Matej is the right person to assist you in this endeavour!

Matej deconstructs various theories of European constitutionalism as they have appeared in the course of European integration. He goes through what he called “The Classical Constitutional Narrative”, represented e.g. by Koen Lenaerts and his famous article “Constitutionalism and the Many Faces of Federalism” (and I would definitively add Eric Stein, who was perhaps one of the first to construct the then EEC as a something special and different from an ordinary international organisation; you might know that he was corresponding with G. Bebr, who at the time worked in the Commission on its submission in the Van Gend en Loos that changed - at least for lawyers - the nature of the EC).

Then Matej identifies a rupture in this classical narrative that occurred with the adoption of the Maastricht Treaty, when the European integration project became fragmented and was started to be seriously questioned.

In the reaction, new theories have emerged and Matej gives a brief overview of many of them (particularly N. Walker’s, M. Kumm’s, M. Maduro’s and I. Pernice’s). Matej often finds that various authors use labels to describe their conceptions while their true content is far from what the label would suggest. However, what I was missing a bit: an answer to the question Matej constantly poses throughout the paper: what is an alternative and ultimately plausible account of the European integration than the “constitutional narrative”, which Matej seems to criticize?

In the conclusion, Matej criticizes the recent developments concerning the Reform Treaty and the (mis)uses of the concept constitutionalism by the political actors:

Indeed, if there is one dominant narrative in the European integration, this is the narrative of constitutional labeling. What is truly dominating integration is a constitutional label, more often than not filled with statist constitutional content, which can be removed from the façade of integration at least as quickly as it has been, with an enormous ease and little reflection, stuck on it. Just recall the latest genuine salto mortale, called the Reform Treaty. In a manner close to lustration of EU constitutionalism the European stakeholders uprooted from the text of a Constitutional Treaty, that they had only a while ago still so vigorously defended as the Constitution, everything that might be in any way reminiscent of the C-word. Those who genuinely believe in constitutionalism and in its appropriateness for the European integration simply do not act like that. And those who do not believe in it can not plausibly expect it to be ever turned into reality.

But, shall we abandon the constitutional narrative too?

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