by Armin von Bogdandy and Jürgen Bast (eds). Oxford, UK: Hart Publishing, 2006. 910pp. Hardback. $230.00/£116.00. ISBN: 9781841134642.
Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza. Email: garruego [at] unizar.es.
In recent years, and as a logical consequence of its Constitutional implications, the European integration process has progressively become a matter of Constitutional Law. For example, recall the signing of the Maastricht Treaty in 1992 and its consequences in terms of political, doctrinal and juridical debate, including the intervention of some of the European Constitutional Courts and diverse Constitutional reforms carried out to accommodate internal Constitutional Law to the new European Union Law provisions. Or think, more recently, about the failure of the so called “Constitutional Treaty” and all the legal and political debate it generated and the subsequent current ratification process of the Lisbon Treaty.
This is the framework of the voluminous coral work, PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW, a book which, as the editors, Armin von Bogdandy and Jürgen Bast, express in its Preface, departs from the assumption that, although there is no European Legal document designed as such, a European Constitutional Law currently exists. In this sense, and using the editors’ words, there would be good reasons “to treat the European Union’s current primary law as constitutional law. After all, it establishes public power, legitimates legal acts, provides a citizenship, protects fundamental rights and regulates the relationships among legal order as well as between law and politics.” Of course, such a controversial assumption is only possible within the framework of a more problematic assertion that “constitutional law is conceivable without a State, a Nation.”
When approaching this volume, the reader should be aware that it reflects the state of the European affairs by the end of 2004 (a second revised edition is expected by the end of 2009), and therefore paying very special attention to the failed “Constitutional treaty,” from the perspective of “German-speaking scholarship,” which collects various methodologies and differing “political approaches to integration.” The book is structured in five parts, the first one dealing with the definition of the field of European Constitutional Law, the second with institutional issues, the third treating individual rights, the fourth examining diverse constitutional aspects of the Union’s economic law, and the final one entitled “On finality.
Part I of the book, “Defining the field of Constitutional Law,” opens with the chapter devoted to “Constitutional Principles” (Armin von Bogdandy). As stated supra, the contribution does not discuss whether the current Union’s primary Law can be considered as the [*746] Constitutional Law of the Union, but departs from the premise that it is the Constitutional Law of the European Union. From this foundation and within the framework of the importance of the development of a “doctrine of principles,” the purpose of the chapter is to identify and to clarify the core principles of the European Union’s Constitutional Law – founding principles analogous to article 20 (1) of the German Constitution, or article 1 of the Spanish Constitution. With regard to the use of national Constitutional principles and relating national jurisprudence, and as the Member States’ and the Union’s Constitutions face the same central problems, it would not be necessary to renounce any comparison, but a simple transfer of contents would not be adequate. In this sense, the Union is not a State, and, therefore, its structuring principles must reflect this by purifying its content from those elements which only apply to a State – a good example of this is the discussion on the possible meaning of the principle of democracy. After examining the so-called founding principles relating to supranational authority (equal liberty, the rule of law, democracy and solidarity), the chapter focuses on the balance between unity and diversity by analyzing those principles promoting unity and those protecting diversity, and concludes with an examination of the principle of loyalty and the federal balance.
Chapter Two, “Federalism and Democracy” (Stefan Oeter), deals with the nature and future prospects of the EU by comparing the then current situation with the German discussion under the 1876 Constitution and other federal and confederal experiences. The contribution ends by analyzing the unavoidable question of where a people of a common European polity come from and, in this context, observes that the decisive virtue of the current European Constitution is that it would be a Constitution in constant change and residing somewhere between federal statehood and confederation. Such a “compound constitution” would preserve, in Oeter’s view, “the peaceful coexistence of the divergent peoples of Europe without depriving them of the advantages of a deepened co-operation in Federal forms” (p.86). According to Oeter, the European “compound of Constitutions,” due to its hybrid or ambivalent nature, would have the undisputable advantage of allowing a gradual progress towards further integration “without compromising the place of genuine ‘statehood’” (p.91). This feature should be understood as a “potential treasure,” whose deviation from traditional forms of Statehood organised in federal forms would be anything but accidental. In this context, the long term objective of the Union would depart from the continued existence of the different peoples of Europe with their own language, culture and historical experience and, therefore, would require an “extremely high degree of tolerance, individually as well as socially.” This constitutional tolerance would be a characteristic feature of the Union inextricably linked to the construction of the “European Constitution,” a Constitution which, in the author’s opinion, Europe already has and which “corresponds rather well to its current state” (p.93).
Chapter Three, “National Constitutional Law relating to the European Union”(Christoph Grabenwarter), explores the transformations experienced by national Constitutional Law due to the integration process – accession to the European Union and the continuing [*747] confrontation with the Union Law and its developments. After examining the relationship between Union Law and national Constitutional Law – classifying the member States in three different groups: those where European Law enjoys full primacy over national Law, those where European Law has limited primacy, and those where national Constitutional Law takes primacy over European Law – the contribution focuses on central contents and principles of the national Constitutions, such as the question of sovereignty, the structural safeguard clauses, decentralization, national parliaments and fundamental rights. Within this framework, Grabenwarter investigates the way in which the member States pursue specific strategies in order to cope with increasing European integration.
The fourth chapter, entitled “The Constitutional Role of Multilateral Treaty Systems (Robert Uerpmann-Wittzack), is an application of the concept of “international supplementary constitution” to the European Union. International supplementary Constitution could be defined as “a multilateral treaty system that acts alongside the constitutional order of a community” and that can fulfill various functions, such as gap filling – as for example the role played in the area of human rights by the European Convention of Human Rights with regard to several European countries. Therefore, the study deals with the constitutional effects of multilateral treaty systems within the Union’s legal order; in other words, the multilateral Treaty systems which the European Union and the European Community have integrated into their own legal regime so that they have become parts of the European Constitutional Law. In this sense, Uerpmann-Wittzack focuses on the role played by the European Convention on Human Rights and the Treaty system of the World Trade Organization and the question of whether both have acted as international supplementary constitutions with regard to European Law. In Uerpmann-Wittzack’s opinion, the European Community has an ambivalent attitude in this field that could be explained by the statu nascendi of its constitutional order, which, although it cannot do without supplementary constitutions, as long as the European Constitutional order has not established itself, “the Community will endeavour to play down the significance of international supplementary constitutions and to place its own claims to autonomy in the foreground” (p.178).
Chapter Five, “Pouvoir constituent – Constitution-Constitutionalisation” (Christoph Möllers) – should have probably been the opening chapter of the book, as it explores the meaning of the concept Constitution and its possible application to the European integration process. Möllers attempts to expose different traditional meanings of that concept and examine their applicability to the integration process departing from two premises. On the one hand, “a meaningful contemporary use of the constitutional concept cannot ensue without a historical-systematic referral to its meanings.” On the other, the function of Constitutions will be understood as “the reciprocal connection of politics and law” (p.184). Möllers first analyses the historic-systematic development of the constitutional concept around two different traditions, which are not contradictory but are both present in the [*748] member States’ current constitutional systems: the foundation of a new political order or “order-founding constitutional tradition” – American and French revolutionary traditions – and the juridification of the already existing governmental system or “power-shaping constitutional tradition” – German and British traditions. Möllers then moves to a discussion of the constitutionalisation of the European Union in order to arrive at the construction of the three levels of meaning of the concept: normative, formal, and descriptive. Within this conceptual framework, it would be evident that in a democratically demanding sense, the European Union lacks a Pouvoir Constituant, although it would be to some extent plausible to speak of the European Treaties as a formal Constitution of Europe, as the “law-making norms” at the European level. However, and as the author stresses, the written aspect of a Constitution is precarious when referring to the European Treaties for a “variety of reasons that can be traced back to the continuously functioning intergovernmental origins of European Law” (p.210). Yet, as Möllers points out when speaking about the supremacy of the Treaties, “the ‘metaphor’ of the European treaties as a Constitution takes a concrete legal meaning,” although not exempt from difficulties (p.212). Within this conceptual framework, the chapter ends with an assessment of the so-called and failed “Constitutional Treaty.” These reflections close under the very expressive heading, “Constitutional Honesty: The Constitutional Treaty as a Semantic Constitution” (p.226).
Part II is devoted to the institutional structure of the European Union, the distribution of competences and its legal instruments. In this context, Chapter Six (“The political Institutions,” Philipp Dann) focuses on the institutions of the European Union under the assumption that, although it can be considered “a moving object,” the institutional development of the Union can be analyzed as “variations on a fixed tune . . . shaped by a generally unchanged tune or, as might be the more appropriate term in this context: structure” (p.229). On this basis, Dann gives account of the institutional setting of the Union within the conceptual framework of “the system of executive federalism,” that is to say, a system of interwoven competences by which Union and Member States are knit together in the tasks of law-making and driven into an institutional dynamic of co-operation” (ibid). On examining the question of the legitimacy of the Union’s institutional system, Dann finally concludes by proposing the new label of “semi parliamentary democracy” (p.276) to refer to the European Union. On the other hand, Chapter Seven (“The European Constitution and the Courts,” Franz C. Mayer) examines the relationship between the highest courts and tribunals, both at European and domestic levels, and Chapter Eight (Armin Von Bogdandy and Jürgen Bast) focuses on the vertical order of competences, outlining its main features and presenting some aspects of the order of competences contained in the failed Constitutional Treaty.
Jürgen Bast’s analysis of the “Legal Instruments” (Chapter Nine) of the Union, departs from a broad concept of law which encompasses both individual measures and nonbinding statements and, consequently, from an understanding of law-making which applies to all kind of acts independent of [*749] their general or individual nature and of their binding or nonbinding character. Bast focuses on those instruments that are valid under the founding treaties, which means that primary law itself, the so called complementary law and international instruments that are part of the Union’s legal order are not addressed. This second part of the book ends with Antje Wiener’s contribution (Chapter 10) on “the emergence of ‘soft’ institutions such as ideas, social and cultural norms, rules and routinised practices and their impact on the evolution and success of the institutions of constitutional law” (p.421).
Part III is devoted to Individual Rights and opens with the work on “Union Citizenship” by Satefan Kadelbach. Beginning with an examination of both the history and the legal concept of the Union citizenship, Kadelbach then investigates its elements in order to identify “the reasons for its negative evaluation in legal writing to date” (p.455) and concludes with his considerations on the future of Union citizenship. Jürgen Kühling examines the issue of “Fundamental Rights” and its protection in the European Union by analyzing the different phases experienced by the protection of fundamental rights at the Union level and the existing legal doctrine on the matter as, though still in the very early stages, a strong fundamental rights discourse “might compensate” to a certain extent the “weak” democratic legitimacy of the Union (p.516). The chapter concludes with some proposals on institutional amendments. This part of the book closes with the study of “Fundamental Freedoms” (Thorsten Kingreen), a German term which refers to the free movement of goods, workers and capitals and to the freedom of establishment and to provide services.
Finally, while Part IV deals with the Constitutional Aspects of Economic Law (“The Economic Constitution,” by Armin Hatje, and “Competition Law as Part of the European Constitution,” by Josef Drexl), Part V closes the volume with some reflections On Finality, which open with the chapter by Ulrich Everling, “The European Union between Community and National Policies and Legal Orders.” Ulrich Haltern’s work (“On finality”), explores the possible European future horizons through the analysis of law “as it stands.” From his perspective, although finality seems to be related to political action, and law in contrast “is inevitably turned to the past,” law is not just a body of rules, it is “a social practice, a way of being in the world . . . that points not only to a community’s past and memory, but to its future and hopes as well . . . A polity imagines itself in part through law” (p.729). Haltern assesses the failure of European Law to create and maintain a collective identity and explains the partial failure of different “artefacts,” such as cultural elements, like the flag or the anthem, or documents such as the European Charter of Fundamental Rights, or the European Court’s jurisprudence on fundamental rights and Union citizenship, by using “consumer aesthetics.” However, the exploration then moves to the great potential evident in the Court’s doctrine, as in Haltern’s view, “the Court’s changing human rights and citizenship discourse [is] indicative of a major shift in law’s role in the quest for human identity” (p.730).
As the reader can see, PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW [*750] constitutes a deep and thorough examination of most of the issues involved in the always complex and controversial European Union’s constitutional debate, whose richness is impossible to give account of in this necessarily short review.
© Copyright 2009 by the author, Gonzalo Arruego.