European Constitutional Pluralism and the Constitution of the Union
WP 2 - Constitutional politics
Madrid, 10-11 November 2011
The workshop is the concluding workshop of RECON's work package 2, which deals with (a) the constitutionalisation of the EU, (b) the Europeanisation of national constitutions, and (c) comparisons of constitutionalism in the EU and in other selected entities. This broad agenda has been pinned down to five related lines of research:
First, is the assessment of established constitutional theories of European integration, with specific emphasis on how well they can account for European constitutional practice (whether they are able to capture the European experience over its six decades of integration) and whether they are sensitive to the Union’s normative aspirations as a post-national democracy and as a complex institutional structure – best understood as a constitutional union of constitutional states.
Second is the reconstruction of European constitutional practice: (a) at the level of the writing of constitutional norms, and at the level of legislation and adjudication within existing constitutional structures; and (b) as it unfolds at the supranational level (the constitutional dimension of Community law) as well as at the national level (the national constitutions as part and parcel of the Constitution of the European Union).
Third is the analysis of the constitutional adaptations at the national level, with special attention to constitutional amendment and the definition of the national constitutional “yardstick” vis-à-vis European integration.
Fourth is the comparative analysis of national ratification processes.
Fifth is the examination of the prospects for supranational democracy in Europe by studying the constitutionalisation of the EU, as a process of constitutional transfer from national constitutions to the supranational one, and as a process of Europeanisation of national constitutions, combined with the discerning of lessons from other non-European instances of constitutional transfer (Canada).
Taken together this research endeavour provides necessary input to the assessment of how constitutional factors respectively increase or decrease the democratic legitimacy of the supranational and the national levels in relation to each of the RECON conceptions of democracy, and to the task of determining which RECON conception European constitutional practice speaks to and how well the processes and the results reflect democratic requirements.
The key theme that will be addressed at the concluding RECON constitutional conference in Madrid is the question of how Europe understands and manages its underlying constitutional pluralism. European constitutional pluralism results from at least two major features of European constitutional practice/settlement.
Firstly, is that the European Union should be properly described as a constitutional union of already existing constitutional states. European integration was constitutionally mandated (through constitutional provisions and as reflected in the constitutions/constitutional practices of the Member States), thus integration has resulted in the creation of a new constitution (the supranational one) which is supported and defined by the continuing presence of national constitutions. The supranational constitution does not supersede national constitutions, but actually gives them a new lease of life, and realizes their will to structure social and political life at a supranational level. But this leaves us with a situation wherein which citizens seem to have two, and not one fundamental laws: the supranational and the national.
Secondly, European integration would be realized through institution-building. The fledgling supranational institutional structure was not only incomplete, only to be completed over time, but was also not placed in a hierarchical relationship vis-à-vis national institutional structures. In genealogical terms, national institutional structures have served as templates for the supranational ones, although the forms of transfer have varied, and been contested, as different national institutional traditions have competed to shape and mould the various aspects of the European institutions. In functional terms, however, no institution, not even law-adjudicating institutions, has been given the last word or hierarchical primacy. As a result, the European constitution is a regulatory ideal grounded in a pluralistic set of constitutional norms and in a plurality of institutional structures, without a vertical hierarchisation of them.
European constitutional pluralism represents a defining feature of the many peculiar traits of the EU as a political community and of EU law as a legal order. It is fundamental to the understanding of the Union’s historical evolution (indeed we cannot understand current developments such as the Lisbon Treaty and the process of forging it without a good handle on this issue); to the understanding of the character and the distinctness of the EU qua polity; it is essential to every effort at conceptualizing and assessing the democratic legitimacy of the European Union; and in general, in the building of a constitutional theory of European integration, of a public philosophy of European integration capable of serving as a practical guide in solving the key issues in the constitutional adjudication of Community law.