The Rise and Fall of the European Constitution

Description

The Draft European Constitution was arguably both an attempt to constitutionalise the Union, re-framing that project in the language of the state, and an attempt to stretch the boundaries of constitutionalism itself, re-imagining that concept to accommodate the sui generis European Union. The (partial) failure of this project is the subject of this collection of essays. The collection brings together leading EU constitutional scholars to consider, with the benefit of hindsight, the purportedly constitutional character of the proposed Constitutional Treaty, the reasons for its rejection by voters in France and the Netherlands, the ongoing implications of this episode for the European project, and the lessons it teaches us about what constitutionalism really means. Acknowledgements Table of Contents List of Contributors 1. Introduction 2. From the Years of the Convention to the Years of Brexit. Where Do We Go from Here? I. The Cautious Mandate to the 2002 Convention II. In the Convention the Lost Battle of the Federalists III. 15 Years Later is it Time for a New Convention? IV. Again Federalist and Functional Views Facing Each Other V. On Behalf of the Functionalist View VI. The Case of the Eurozone and the Prospect of a Multi-cluster Europe VII. Brexit and the Lost Benefits of a Multi-cluster Europe 3. Constitutionalisation without Constitution: A Democracy Problem I. The Treaty Establishing a Constitution for Europe – Treaty or Constitution? II. The Distinction between Constitutional and Ordinary Law as a Precondition of Democracy III. Constitutionalisation of the Treaties through the Jurisprudence of the European Court of Justice IV. The Democratic Costs of Over-constitutionalisation V. The Remedy: Re-politicisation by De-constitutionalisation 4. The EU’s Constitutional Moment: A View from the Ground Up 5. Treaty Amendment, the Draft Constitution and European Integration I. Constitutional Treaty: Rationale for the Convention II. Convention on the Future of Europe: Emergence of the Draft Constitutional Treaty III. European Integration: The Significance of the Constitutional Treaty IV. European Integration: Present Challenges V. Conclusion 6. The European Constitution and Europe’s Dialectical Federalism I. Introduction II. The Dialectical Tension III. A Federation Out of Reach: The European Constitution IV. The Future of Federalisation: A Return to the Past 7. The Two Europes I. Two Visions of Europe II. The Grand Bargain and the Draft Constitution III. Conclusion 8. The Competence Catalogue in the Treaty Establishing a Constitution and the Treaty of Lisbon: Improvement, but at a Cost I. Introduction II. The ‘Competence Problem’ III. The ‘Competence Solution’: The Treaty Establishing a Constitution IV. The Treaties as Amended by the Lisbon Treaty V. Practice Since the Reforms were Put in Place VI. Evasion VII. The Eurozone VIII. The Case for, and Possible Patterns of, Reform IX. Conclusion 9. The Charter of Fundamental Rights and the EU’s Shallow Constitutionalism I. The EU’s Institutional Constitution between ‘Deep’ and ‘Shallow’ Constitutionalism II. The Principle of Limited Government and the Charter of Fundamental Rights III. First-order versus Second-order Constitutional Principles of the EU IV. The Principle of Federalism V. Individual Liberty VI. Brexit and the Charter of Fundamental Rights – The N.S. Case VII. Conclusion 10. The EU Constitution, Sovereignty and the Problem of Primacy I. Introduction II. Sovereignty III. The Problem of Kompetenz-Kompetenz IV. The Pre-DCT Cases V. The Lisbon Judgment VI. The Euro Crisis Judgments VII. The ECB’s QE Programme – A Rerun of the OMT Litigation VIII. Conclusion 11. Europe’s Constitutional Overture I. A Disputed Legacy II. Europe’s Constitutional Continuum III. Constitutional Possibilities 12. The European Constitution and ‘the Compulsion to Grand Politics’ I. Introduction II. Friedrich Nietzsche on Europe and ‘the Compulsion to Grand Politics’ III. From Nice to Giscard’s Convention IV. Grand Politics in a Cross-pressured Context V. European Civilisation Now VI. Conclusions 13. Recollections from and Reflections on the Making and Failure of the European Constitution Index