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This article looks at how and why the EU has been/can be endowed with powers over criminal matters, within the framework of the theory of jurisdiction. It examines the extent to which the specific responsibility of the EU for the protection of certain legal interests justifies the establishment of a (peripheral) jurisdiction. Member States (MS) can confer such powers upon the EU, but this attribution must be consistent with their domestic obligations and limitations on state action. A crucial distinction is established between exclusive and shared responsibility: the former concerns the protection of 'institutional legal interests' exclusive to the EU, whereas the latter relates to 'functional legal interests', which also fall within the remit of Member States but are moulded or significantly affected by EU policies. It is argued that this differentiation should translate into the type of acts adopted, which may require some adaptations to traditional guarantees such as the legality principle. [ABSTRACT FROM AUTHOR]

The author reflects on the Rejtan attitude of having the freedom and courage of expressing opinions and turning it into action for a real change of reality in the practice of law. He considers the European Court of Justice's jurisprudence and judicial independence and the principles and values of the Constitution as the most effective way to protect the rule of law. He notes the importance of decency to the search for justice and equity and to preserving the values of democracy.

Jürgen Habermas has long been one of the EU's most prominent and influential critical friends, engaged as much at the level of legal and political praxis as social theory. In particular, he has a close and complex longstanding interest in the idea of an EU constitution. On the occasion of his 90th birthday, I want to discuss three treatments of the EU constitution located in Habermas's work: constitution as catalyst, as reconstruction, and as refounding. We find the different treatments, and the priorities that underscore them, emphasised at different times—partly reflecting changing political circumstances. We also observe some tension between the different approaches. Yet, as someone broadly sympathetic to his overall project, I argue that the best understanding of the Habermasian position, and certainly the most attractive version of that position in today's political climate, involves reconciling all three treatments within a single package. [ABSTRACT FROM AUTHOR]

The constitutionalisation of the European Union has since the early 1990s become a truism in European studies. This article revisits the constitutionalisation theory drawing on the insights from emerging historical research and new strands of political science research. We find that the conventional constitutional narrative is less convincing when confronted with the new evidence from historical and political science research. New historical research show that Member State governments, administrations and courts have generally been rather reluctant to embrace the constitutional project of the ECJ. Furthermore, at the level of European politics, the ECJ and its case law have far from judicialized European decision‐making to the extent often claimed. Concluding, we reject the notion that the ECJ has successfully constitutionalised the EU, emphasising instead the inherent tensions in the process, which continue to complicate the efficiency of European law. [ABSTRACT FROM AUTHOR]

It is often assumed that Court of Justice interpretations of EU law are definitive and binding. However, this conflicts with conventional ideas about the trias politica, as well as with the principle of conferral, and rests on no more than the Court's own assertion. It also has harmful policy consequences, forcing national courts into constitutional resistance and, in claiming to fix the meaning of the Treaties, smothering Union politics. Interpretative pluralism, by contrast, insists on the possibility of diverging interpretations. That allows for wider participation in the construction of EU law, while retaining the integrity of Union law through commitment to shared texts and a balance of power between institutions. Institutional disagreements are reframed, not as conflicts between legal orders, but as conflicts about the meaning of a shared one. This approach is more profoundly integrative than the Court's top‐down approach, and also allows for greater diversity and experiment. [ABSTRACT FROM AUTHOR]

This article reconsiders the driving forces behind the active role of Dutch courts in the early development of European law by analysing the histories of the 1962 Bosch and 1963 Van Gend en Loos preliminary references. The legal context of these path‐breaking references and their crucial impact on the development of a constitutional doctrine in European law are evident. Yet for understanding the emergence of the cases, their political and economic contexts need to be added to the well‐known favourable constitutional settlement from which they arose. Adding contingency to the narrative of the Netherlands as the proverbial 'good European', this article reports how the pavement for the 'road to Luxembourg' was made up of materials as diverse as an open stance towards international law, a black market in electronic equipment, and a dispute on the definition of Harnstoffharz. [ABSTRACT FROM AUTHOR]

Abstract: This article enquires into the formal dimension of constitutional identity by focusing not on what it consists of but on how it is expressed in the different discursive practices developed by constitutional courts. Contrasting constitutional identity as sameness and constitutional identity as selfhood shows that domestic courts can favour either a substantive determination of core constitutional features or a performative approach where the reflexive ability to define oneself prevails. Such a choice conditions the judicial strategies developed in the interactions with the Court of Justice, and their effectiveness. From this perspective, the accommodation in EU law, in light of the respect for Member States' national identity affirmed in Article 4(2) TEU, of these domestic identity claims rooted in the supremacy of the Constitution, depends less on what is asked for than on how it is asked for. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

Ever since the Court's judgment in Walrave, there has been a concerted effort in caselaw and doctrine to limit the horizontal direct effect of free movement provisions to exceptional circumstances. This article suggests that this effort has always been incoherent, and is simply untenable after Viking and Laval. The implications are far reaching, especially in the sphere of the free movement of capital and corporate governance where the Court is well on its way of imposing a model of shareholder primacy on European company law. Full direct horizontal effect will also have important repercussions for private law and its ability to resolve conflicts between economic freedoms and fundamental rights. Given the nature of the free movement provisions, their horizontal effect will sometimes lead to a constitutionalised market and sometimes to a marketised constitution, without there being any principled way of distinguishing between the two. In that light, horizontal direct effect is very unlikely to enhance the effectiveness of internal market law-whichever model of the social market economy it is thought to embody-and is best abandoned. [ABSTRACT FROM AUTHOR]

The constitutionalisation of the EU has been not without its challenges. However, putting aside the apparent political difficulties of the constitutional process, this article argues that, because the further constitutionalisation of the EU depends on its ability to assimilate some features of a federal state, there are, at least, two reasons why the EU is not yet ready for its constitutionalisation. The first reason is that its excise duty system, which permits discriminatory and protectionist behaviour by Member States, prevents the EU from achieving its fundamental objective of an internal market. The second reason is the EU's budget, which is so small that it is doubtful whether the EU will survive its continuing enlargement. As a solution to this problem, this article introduces section 90 of the Australian Constitution, which provides the Commonwealth of Australia with the exclusive power to levy excise duties. The article argues that the adoption, by the EU, of a similar fiscal arrangement would remove the discriminatory and protectionist operation of its excise duty system and help enlarge the size of the EU's budget by providing it with a self- financing mechanism. [ABSTRACT FROM AUTHOR]

This article discusses the judgment of the German Constitutional Court on the constitutionality of the Treaty of Lisbon, concentrating on the court's insistence on the prerogatives of the national legislature. The court's insistence on prior national legislative ratification for the application of the simplified treaty revision procedure and of similar de facto amendment procedures, including the flexibility clause, is conservative but understandable from the perspective of German constitutional law. The prescription of prior bicameral ratification for the application of the flexibility clause makes the German government procedurally one of the most tightly controlled in the EU, although this would not be unique, and the effect of such control will depend on the cleavage between the government and the national legislature, especially the German upper chamber. None of the procedures insisted upon by the court are incompatible with EU Treaty law. Whether the new procedures will actually enhance the democratic legitimacy of EU measures in German perception will depend on the degree to which political parties in the national legislature will publicly politicise their stance on the decisions in question, allowing voters to hold them to account. All the court can do is prescribe opportunities where such politicisation may take place. [ABSTRACT FROM AUTHOR]

This article seeks to answer one of the key questions facing the EU in the future: what effect will the new right to withdraw have on the EU? Will it lead to a gradual fragmentation of what was supposed to be ‘an ever closer union of unlimited duration’? Or will it even mark the beginning of the end of the Union? In order to answer these complex questions, this article first briefly analyses the pre-Lisbon situation regarding withdrawal. It then critically examines the newly inserted Article 50, which codifies the right to withdraw. Having done so, it will then examine whether non-legal considerations, such as political and economic reasons, will render withdrawal a theoretical rather than realistic option. [ABSTRACT FROM AUTHOR]

The article discusses the roles of founding principles of the EU with the method of doctrinal constructivism, thereby explaining this specific approach to legal scholarship. At the same time it proves the usefulness of the constitutional approach to EU law. Core characteristics of the EU legal order should become more tangible. [ABSTRACT FROM AUTHOR]

In this article the author assesses the proportionality principle in EU law from a legal theoretical and constitutional perspective with the aim of discovering the function of the principle. Having first discussed the implications of the proportionality principle being a general principle of law, and what function it has—namely to secure legitimacy for judicial decisions—the author suggests that there are several ways in which the principle can be interpreted. There is, nevertheless, a limit to this interpretation determined by the proposed function of the principle. In the third part of the article, the European Court of Justice's (ECJ's) interpretation of the principle is assessed. The assessment clearly shows that the ECJ is interpreting the principle in different distinguishable ways. The question could, however, be raised as to whether the ECJ in some areas is interpreting the principle in a way that undermines the very function of it. [ABSTRACT FROM AUTHOR]

The European Court of Justice has persisted in adopting an unduly restrictive interpretation of Article 230(4) EC and that persistence has reached its apogee in the UPA decision, while at the same time it was mirrored in the relevant provisions of the draft Constitution. Therefore, it is surprising to see that in the aftermath of UPA, there can be something positive that can be explored further and that can be tested in order to establish whether any indirect, alas limited, liberalisation of the standing criteria is possible. The Ten Kate case established that, in principle, a Member State could be under an obligation under domestic law to challenge the validity of Community legislation. If the state, in all of its different manifestations, fails to challenge the validity of a Community measure when such an obligation arises under municipal law, then the citizen could be in a position to claim compensation. Therefore, the case introduces the doctrine of state liability and the agency analogy (with the state representing the individual or as parens patriae) as connected paths trying to circumvent the standing restrictions. The advantage is that the proceedings would take place under national law and would be detached from the Plaumann conditions. It is proposed that constitutionally entrenched human rights, like effective judicial protection, combined with the principle of legitimate expectation, could create the legal basis for an obligation of the state under national law to challenge the validity of Community norms. The paradox is that effective judicial protection was the exact argument that the European Court of Justice sidelined in UPA. [ABSTRACT FROM AUTHOR]

The Treaty of Lisbon has introduced a complex new typology of acts, distinguishing between legislative, delegated and implementing acts. This reform, the first since the Treaty of Rome, will have an impact on some of the most contested topics of EU law, touching several central questions of a constitutional nature. This article critically analyses which potential effects and consequences the reform will have. It looks, inter alia, at the aspects of the shifting relation between EU institutions, the distribution of powers between the EU and its Member States, as well as the future of rule-making and implementation structures such as comitology and agencies. [ABSTRACT FROM AUTHOR]

This article explores in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, it is claimed that the democratic deficit must be disaggregated, given that the Union has not only several shortcomings, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the Member States, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences and the plurality of law-making procedures. [ABSTRACT FROM AUTHOR]

The 2005 French and Dutch negative votes on the Constitution open up a space of conceptualisation, not only of Europe's relation to its demos, but significantly to its failures. Through a critical analysis of mainly Niklas Luhmann's systems theory, the article proposes taking a distance from traditional constitutional dogmatics that are no longer capable of dealing with the paradox of contemporary society, and more specifically with the eventual resurgence of the European project as one of absence and stasis: the two terms are used to explain the need, on the one hand, to maintain the ‘absent community’ of Europe, and, on the other, to start realising that any conceptualisation of the European project will now have to take place in that space of instability and contingency revealed by the constitutional failure. The relation between law and politics, the location of a constitution, the distinction between social and normative legitimacy, the connection between European identity and demos, and the concept of continuity between constitutional text and context are revisited in an attempt to trace the constitutional failure as the constitutional moment par excellence. [ABSTRACT FROM AUTHOR]

Especially since the failure of the European Constitutional Treaty, the idea of a European constitutional patriotism has become subject to ever more intense criticism. This article argues that many of the criticisms of the idea of a European constitutional patriotism have been based on philosophical misunderstandings (both of the notion of constitutional patriotism as such, and of the role it could play in Europe) or rely on implausible empirical claims. Accordingly, the normative idea of constitutional patriotism is first clarified; second, the article discusses some of the most common normative and empirical traps when trying to ‘transfer’ constitutional patriotism from a domestic nation-state context to the supranational level, as well as the tendency to overburden constitutional patriotism with expectations of solidarity and deliberative democracy; third, an EU-specific post-sovereign, pluralist version of constitutional patriotism is defended against critics who see even such a vision as insufficiently sensitive to value pluralism and cultural diversity. [ABSTRACT FROM AUTHOR]

The failure of the European constitutional treaty has not been taken seriously by the European constitutionalists. It is regarded as a kind of accident which will be repaired in due course. The article is a plea for a reopening of the debate on Europeanness. Europe cannot and should not be a ‘superstate’; nor can it be a kind of revival of the European nation state which is threatened by globalisation. Even less can it be a community of post-national deliberators as Jürgen Habermas would have it. Europe should be constructed as an entity of its own which responds to the heterarchical relational logic of fragmentation which characterises post-modernity and globalisation of which it is a part. It cannot be its counterpart. Europe does not need a ‘constitution’, and it does not need a ‘people’ either. [ABSTRACT FROM AUTHOR]

Instead of the political reading of the EU Constitution adopted by advocates of constitutional patriotism, this article examines the European economic constitution. The four single market freedoms can be used by the Court of Justice to strike down Member State laws which represent deeply held aspects of national cultural identity. The article examines whether the court does in fact act in this way and proceeds to argue that the issue of identity protection does not stop with the court. In those policy areas where the court is more interventionist, and its case-law is perceived as an identity threat, one is likely to find binding Treaty-based derogations. Where, in contrast, the effect of the court's case-law poses less of a threat, one is more likely to see non-binding declarations. The article examines a number of policy areas in which specific cultural derogations and declarations are to be found, including abortion, property acquisition, football and alcohol control. [ABSTRACT FROM AUTHOR]

The article presents a declaration outlining reasons to safeguard the rule of law in the European Union (EU). These include vision for establishing a union among the peoples of Europe, respect for the principles of liberal constitutional democracy, interconnection of liberal democracy, human rights and the rule of law, realization of the rights of European citizens, common legal order obligation and upholding of equivalent standards developed by the Council of Europe bodies and mechanisms.

The draft Constitution was an attempt to democratise the EU, while taking account of the problematic social preconditions for democracy at the Union level. Its failure demonstrates the need to pay greater attention to the nature of public support for the EU, and to the ways in which this support is related to the democratic quality of EU institutions. Contrary to what is often assumed, EU support can still be quite adequately described by the figure of a ‘permissive consensus’. For better or worse, attempts to democratise EU institutions might undermine this form of support. [ABSTRACT FROM AUTHOR]

This article takes issue with aspects of the influential ‘regulatory’ perspective on European governance, especially as developed by Majone and Moravcsik. While many of their claims are compelling, these accounts become much less convincing when they move from empirical analysis to normative prescription—an argument developed in the article's first major section. The article charts the ambivalent treatment of connections between national democracies and at the EU level by regulatory theorists, considers their treatment of democracy, efficiency, welfare, social citizenship, understood here as features or legacies of majoritarian, or more accurately mass, democracy in Europe. The second section offers an alternative academic agenda for the analysis of Europe's multi-level politics, which places it in historical perspective. It seeks to contribute to a growing body of EU scholarship that finds inspiration in the macro-comparative approach of Rokkan, while also drawing links with studies in American political development. A rounded assessment of the prospects for democracy, legitimacy and political stability in Europe needs at least to integrate national and Europe level trends. [ABSTRACT FROM AUTHOR]

It has long been argued that the EU is creating a new kind of constitutional order in Europe, one variously hailed as ‘transnational’, ‘supranational’, even ‘post-national’. Among the many theoretical descriptors used to capture the elusive character of the EU's unique political order are ‘multi-level polity’, ‘civic tolerance’, and ‘governance without government’. Yet despite its success in developing the legal, economic, and institutional framework for this emerging polity, one key factor continues to undermine the project for European construction: the lack of a common culture or identity around which Europeans can unite. Drawing on anthropological research in Brussels, this article explores the implications of the EU's absent demos. It also outlines some of the strategies the European Commission has used to address this problem and resolve its democratic deficit. Taking up recent debates developed by a number of EU scholars, I highlight some of the contradictions and theoretical weaknesses with the concept of ‘governance’ in an EU context. Reversing Wallace's dictum about ‘government without statehood’, I ask whether EU governance might not, in fact, be better construed as ‘statehood without government’ and a new form of ‘governmentality’. [ABSTRACT FROM AUTHOR]

Critics of the EU's democratic deficit standardly attribute the problem to either sociocultural reasons, principally the lack of a demos and public sphere, or institutional factors, notably the lack of electoral accountability because of the limited ability of the European Parliament to legislate and control the executive powers of the Commission and the Council of Ministers. Recently two groups of theorists have argued neither deficit need prove problematic. The first group adopts a rights-based view of democracy and claims that a European consensus on rights, as represented by the Charter of Fundamental European Rights, can offer the basis of citizen allegiance to EU wide democracy, thereby overcoming the demos deficit. The second group adopts a public-interest view of democracy and argues that so long as delegated authorities enact policies that are ‘for’ the people, then the absence of institutional forms that facilitate democracy ‘by’ the people are likewise unnecessary—indeed, in certain areas they may be positively harmful. This article argues that both views are normatively and empirically flawed. This is because there is no consensus on rights or the public interest apart from the majority view of a demos secured through parliamentary institutions. To the extent that these remain absent at the EU level, a democratic deficit continues to exist. [ABSTRACT FROM AUTHOR]

This article examines the hypothesis that the impact of difference of ideas and interests on European constitution making can, under certain conditions, be a positive potential for legitimate and effective constitution making. The prerequisite conditions include actors that take differences seriously, structures of constitution making that are suitable for recognising differences, and processes of constitution making in which actors deal with differences in a democratic and communicative way. The analytical approach will be applied to the European Convention. Two case studies concerning the Convention's work will be examined: the process of decision-making that led to the protocol on national parliaments and the decision-making process concerning a permanent president of the European Council. Both case studies give evidence that the way in which members of the Convention were dealing with difference influenced the degree to which the positive potential of difference was activated for a legitimate and effective European constitutional treaty. [ABSTRACT FROM AUTHOR]

What is the role of the nation-state in the process of European constitutional integration? How can we transcend our divisions without marginalising those who believe in them? This article critically analyses the theoretical bases of the Treaty Establishing a Constitution for Europe and tries to explain why its ratification is so problematic. Authors such as Habermas have argued that a new European model of social cohesion is needed, and Habermas suggests that the sense of ‘community’ in a democratic Europe should be founded exclusively on the acceptance of a patriotic constitution. However, this view is criticised by authors such as Weiler and MacCormick. In this article, I explain the limits of these theoretical analyses. I will argue that a European constitutional project can be more than formally legal only if two normative conditions are satisfied: it is the result of public debate and the European Constitution includes the procedures for the recognition of European national diversity. I suggest that a theory of constitutional multinationalism, similar to the one proposed by Tully, might provide an attractive model for a European social integration. The article is divided in two parts. In the first, I explain why Habermas’ constitutional patriotism or MacCormick's states based Europe cannot provide a convincing theoretical model for a socially and constitutionally integrated Europe. In the second part, I will give an outline of Tully's idea of multinational democracy as a model for a European constitutional integration. [ABSTRACT FROM AUTHOR]

The article reflects on the seeming inattention of the world outside the European Union to the negative results of the referendum conducted by France and the Netherlands on the proposed European Constitution. The indifference of nations like Israel may be indicate that institutionalized Europe has moved beyond the objective of its formation and must now address the social question, which has been the core conflict of most of Europe's nation states since the 19th century. The no vote has sent a signal to the European political elites relaying anger about an unknown and socially risky future.

This article deals with how the Court of Justice balances fundamental rights protection and Common Market freedoms. From the particular perspective of the Charter and the ECHR, whose legal status will be upgraded upon entry into force of the European Constitution, it studies the Court of Justice's approach to fundamental rights invocations by Member States in the context of Common Market freedoms. For this purpose the judgments in Schmidberger and Omega will be discussed both in the current setting and that envisioned by the European Constitution. It will emerge that the Court of Justice's reasoning in Schmidberger and Omega can be criticised on different levels, and alternative approaches are proposed. At a later stage some further elements for refining the methodology for assessing Member States’ fundamental rights invocations are addressed with a view to facilitating the Court of Justice more satisfactorily to take account of the current and likely future setting of fundamental rights protection in Union law. [ABSTRACT FROM AUTHOR]

: A remarkable feature of the Union's legal order is the absence of a genuine hierarchy of legal acts—a pre-established ranking of different types of legal acts in accordance with the democratic legitimacy of their respective authors and adoption procedures, which is used as a means to resolve conflicts among these different types of legal acts. There is however a clear suggestion of such hierarchy in the sequence in which the newly created legal instruments are listed in Article I-33(1) and in the organisation of the subsequent Articles I-34 to I-37 of the European Constitution. In this contribution, the (lost) logic behind the Union's current set of legal instruments is analysed, followed by an examination of the reform of the system of legal instruments carried out in the European Constitution. Lastly, an attempt is made to answer the question as to whether this reform amounts to the establishment of a genuine hierarchy of legal acts in the Union. [ABSTRACT FROM AUTHOR]

Discusses enhanced cooperation in the constitutional treaty in the European Union (EU). Foreign, defense and security issues in the treaty establishing a constitution for Europe; Patterns of cooperation outside the EU framework; Reinforced cooperative links.

Our aim in this article is to consider whether the Union's deliberation over and decision-making on constitutional norms,can contribute to render it more democratic. From a normative perspective, the way a constitution is forged has deep implications for its democratic legitimacy. In light of recent events, we consider how procedural changes in constitution-makingmight contribute to rectify the Union's democratic deficit. To do so we first develop a thinmodel of constitution-making based on the central tenets of deliberative democracy. Through this we seek to outline how a legitimate constitution-making process will look from a deliberative democratic perspective. Second, we distil out some of the core characteristics of the Intergovernmental Conference (hereafter, IGC) model and assess this against the normative model, to establish the democratic quality of the IGC model. Third, we assess the current Laeken process by means of spelling out the central tenets of this mode of constitution-making, and we assess it in relation to the normative standards of the deliberative model. In the fourth and final step, we consider what contribution constitution-making might make to the handling of the EU's legitimacy deficit(s). We find that the Laeken process, in contrast to previous IGCs, was explicitly framed as a matter of constitution-making. It carried further the democratization of constitution-making, through its heightened degree of inclusivity and transparency. However, when considered in relation to the deliberative-democratic model, it is clear that the Laeken Constitutional Treaty cannot be accorded the full dignityof a democratic constitution. The Constitutional Treaty can however lay the foundations for We the European people to speak. [ABSTRACT FROM AUTHOR]

Discusses the implications of the European Union (EU) constitution. Transformation of mere basic law in a given legal system into a norm with deontological status; Need to clarify the legitimacy requirements of the constituent process; Relationship between the legitimacy of the EU and the legitimacy of the model of constitution making.

: Even if the institutions of representative democracy that have developed in the nation-state context cannot be simply transposed to the European Union, for practical and normative reasons they do provide the main starting point for any reflection on the EU's‘democratic deficit’. This article draws upon the Constitution prepared by the European Convention to reconstruct the concept of representative democracy in the EU. Drawing on the proposals put forward, it identifies two distinctive challenges that need to be overcome if the concept of representative democracy is to be successfully applied to the EU: the multilevel character of the polity and the shift of the centre of political gravity from legislative to executive politics. The article then examines the extent to which the institutional proposals contained in the Constitution go to meet these two challenges and also highlights some aspects in which these proposals fall short. [ABSTRACT FROM AUTHOR]

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 undertheorisedsui generisaccounts 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. [ABSTRACT FROM AUTHOR]

One of the most important issues surrounding the new Constitutional Treaty is the extent to which it will be able to generate a greater popular identification with the European integration project. This article explores this issue in more depth by looking at the role of popular identification in securing polity legitimacy in general. An argument is then developed that although popular identification and polity legitimacy are often separated, from a practical point of view, it is preferable to think of polity legitimacy in such a way as to incorporate questions of identity and affectivity. The article then outlines a way in which such a theory can be constructed, termed an‘aesthetic’ theory of political legitimacy. Such a theory is then applied to understand both the EU as a distinctive type of post-state polity and the role that the constitutional tradition might play in securing its legitimacy. [ABSTRACT FROM AUTHOR]

Moving from Michel Foucault's criticism, in the mid-1970s, of a‘theory of the State’, this paper addresses the relevance—for the current process of making the‘Constitution’ of the European Union—of the obsolescence of the state concept and the emergence instead, in the course of the twentieth-century, of an idea of‘social control’ as a way to represent conditions for social order within the new mass democratic society. Such conditions, and the theory thereof, first developed in North America, and then increasingly in Europe after World War II and especially since the 1970s. From such a comparative-historical perspective, the paper then tries to shed light on the debate that was ignited by Dieter Grimm on the very possibility of a‘democratic constitutionalisation’ of Europe. The connections between language, social control, and a (democratic) European constitution are then discussed, and specific attention is given to the nexus that has been constructed in today's Europe between migration, criminalisation and security, as a sort of test bench of those connections. [ABSTRACT FROM AUTHOR]

The idea that the European Union must not adopt a constitution is gaining ground in current legal research on European constitutionalism. The N-C (No Constitution) thesis is being forcefully defended, in particular, by authors in the‘contextual’ or‘law in context’ tradition. However, likewise using a‘contextual’ methodology, in this article I argue that the N-C thesis is in many regards misplaced. In this work, I defend the idea that Europe must adopt a constitution for reasons of credibility. I also try to show the main pitfalls of the N-C thesis. [ABSTRACT FROM AUTHOR]

Discusses private law and constitutional law in Europe set against a background of constitutional settlement. Protective function of the state to develop private law with due regard to constitutional values; Multi-legal system where there is no cohesive democracy with its atttributes of identity, indivisible sovereignty, and fixed boundaries.

Presents the articles published in the November 2004 issue of "European Law Journal". Social justice in European civil law; National laws and constitutions; International committments to human rights; European constitutional settlement; Concept of persons that embraces constitutional and private law concepts.

European codes of private law have traditionally commenced with a concept of the person. In the development of private law in the European Union, we require a modern concept of the person, one which goes beyond the idea of the bearer of economic rights, to one which embraces ideas of human rights and social solidarity, as found in the Universal Declaration of Human Rights and the Nice Charter of Fundamental Rights of the European Union. [ABSTRACT FROM AUTHOR]

Conditionality has deeply affected European integration, particularly in what concerns EU human rights external policy on the one hand, and the enlargement process on the other hand. This paper affords a picture of the problems which conditionality has raised, not only on legal grounds, but also for the shaping and the understanding of the European identity. Moreover, the paper investigates how recent EU developments, such as the further stages of the enlargement process and the ‘Treaty establishing a European Constitution’, might change the course of, and might be affected by, conditionality. [ABSTRACT FROM AUTHOR]

The European Union is finalising negotiations in respect of a constitution that will define its identity and future. The draft constitution begins with a quote from Thucydides ‘Our constitution . . . is called a democracy because power is in the hands not of a minority but of the greatest number’. In this article I look at the proposed constitutional framework of the European Union from the perspective of the gradual realisation of measures in criminal law capable of affecting the lives of individuals. The central question is to what extent the Union is providing itself with the tools to achieve democratic exercise of the power to maintain order and to punish individuals within a single area of freedom, security, and justice. Within the draft constitution an ambiguity arises as regards the principles which underlie this part of the project: mutual recognition and approximation. Mutual recognition of national decisions maintains power within the borders of the state, approximation leads towards a consolidation of power. The extent to which the constitution pulls in two rather different directions and the consequences for the individual are examined here. [ABSTRACT FROM AUTHOR]

Against the constitutional optimism that pervades our political rationality, I will argue the case for a disorganised civil society, genuinely plural, resistant to dominant representations that call it into line and thus undercut its radical potential. I will explore some of the more adventurous and persuasive such attempts to argue for an inclusive constitutionalism, one that supposedly reaches out to civil society and in order to do so relaxes the rigidity of its own terms, to harbour and host the diversity it aspires to represent. I will argue that these attempts at inclusion create constitutional irresolutions either forcing impossible demands on constitutionalism or dispelling the disorganisation it is meant to give expression to. I will then argue that in spite of the inability to capture them as constitutional moments, politics of ‘pure presence’ and real self-determination are possible, and against constitutional mystifications, resistance might find its opportunity in praxis, understood in the language of praxis philosophy (more specifically the work of Antonio Negri). [ABSTRACT FROM AUTHOR]

The twin concepts of constitutionalism and democracy, which offer a complex template for the structural organisation of a polity, can be understood in terms of a dialectic of complementary but competing values, values represented by responsiveness to an existing order and innovation towards a potentially new order. Recognising this necessarily dynamic relationship, an essentialist reading of a constitutionalisation of the demos is abandoned, and an examination of the extent to which the dialectic can credibly or legitimately be played out in a supranational ‘community’ and in the context of an emerging transnational civil society can be undertaken. Rather than seeking credibility or legitimacy through the rationalisation of a community by an ethical consensus as in some forms of republicanism and communitarianism, the dialectic opens up the norms and boundaries of the polity and leads to an understanding of the ‘community’ in less rigid and more diffuse, even plural, terms. Once understood in this way the possibility emerges for legitimacy to be pursued through a public sphere enlarged by a context-transcending constitutional discourse mediated by transnational civil society. Alternatively the normative ‘openness’ of the polity might be prioritised and with it the uncertainty/fluidity of the constitutional arrangement itself; in this way the legitimate pursuit of constitutionalism is understood in terms of a never-ending agonistic struggle or experimental practice. [ABSTRACT FROM AUTHOR]

Abstract: The relationship between the present enlargement and the development of an active constitutional discourse in the EU is a complex one. On the one hand, it may appear that the pre-existence and the current extension of the constitutional acquis threatens to confront the enlargement countries, many of whom are understandably jealous of their recently won constitutional autonomy, with a fait accompli whereby their membership of the club is conditional upon acceptance of an already mature constitutional doctrine and culture. On the other hand, EU constitutional discourse is by no means a closed book, or one which systematically favours old members over new. Rather, it remains an open-textured and provisional affair which is bound to address certain deep-rooted and urgent tensions over institutional design and fundamental values and which may do so in a manner that combats rather than accentuates the possibility of discrimination against the new members. In this regard, the current Convention on the Future of Europe and the Intergovernmental Conference to which it is directed represent a key episode in the ongoing development of the EU's constitutional identity. [ABSTRACT FROM AUTHOR]

Legal studies react to the Union’s social legitimacy deficit either by funnelling the problem to empirical sociology (accompanied by the familiar call for more transparency and democracy), or by ignoring it altogether. This article argues that the crisis in social acceptance can be traced back to the texture of EU law. Law is more than a body of rules: it is a social practice, a structure of meaning, and a system of beliefs. In this light, national law has a richly textured fabric of cultural resources to rely on, which makes it ‘ours’. In contrast, EU law embodies the fluid surface of consumer identity and appears less ‘ours’. The Union’s counter–measures—adding pathos and patina to neutralise our distrust—have proven unsuccessful. Neither will a new written Constitution be particularly helpful. The way out, rather, is coming to terms with the market citizen, rather than believing in, and forcing upon the consumer, stories of shared values and historically situated commonality. [ABSTRACT FROM AUTHOR]

This paper it looks at some of the normative questions which frame debates about the EU constitutional architecture. Its main objective is to identify the core facets of a ‘responsible and inclusive EU constitutionalism’, and to argue for a focus on process, freedom, fairness and democracy as well as formal constitution–building within the debates inside and outside the Convention running up to the Intergovernmental Conference anticipated for 2003/2004. A model using the work of Canadian political theorist James Tully is constructed. The paper applies this framework in order to analyse some aspects of the work of the Convention on the Future of the Union, looking especially at questions of autonomy, representativity, internal dynamics, deliberation, receptiveness, and decision–making. The interim conclusion is drawn that the Convention method contains within itself the seeds of a critical and reflexive approach to EU constitutionalism. [ABSTRACT FROM AUTHOR]

Constitutionalism offers an academically constructed framework that allows us to assess processes of constitutional change in their respective societal contexts. This article offers insights into different perspectives within the debate over ‘European’ constitutionalism and their potential consequences. It makes the point for a societal approach to assess the emergence and role of both, constitutional and sociocultural norms, pointing to the key role of social practices in this process. It proposes an approach to constitutionalism which elaborates on a shift of analytical focus from the ‘type of polity’ towards ‘social practices’ as key to evolving, interpreting, and implementing norms. It is argued that this choice of perspective matters. It has implications for subsequent moves including the selection of case studies and methodology. The distinct analytical choices are presented as four positions of constitutional choice. [ABSTRACT FROM AUTHOR]