The Notion and Nature of the European Constitution after the Reform Treaty
16 Pages Posted: 22 Jan 2008 Last revised: 27 Jun 2014
Date Written: January 18, 2008
Abstract
This paper argues on the basis of comparative constitutional law the following five points:
1) That the European Union has developed into a constitutional order, can only be understood if we acknowledge the non-revolutionary, evolutionary and incremental nature of the European constitution.
2) We need to say farewell to formal criteria in order to identify what is constitutional in the political and legal order of the European Union.
3) In European law, we do not know exactly where the boundary is between 'constitutional' and 'ordinary' law, just as is the case with other constitutions of the 'historic type'.
4) For lack of a 'constitutional moment', a formal EU 'constitution', if ever realized, would only be a momentary reflection, no more than a snap-shot; it would be a Grundgesetz rather than a Verfassung; that is to say in the appropriate equivalent terms: a fundamental treaty, rather than a constitutional treaty.
5) The coming together of contrasting cultural perceptions of constitutions, the arch-types of 'revolutionary' and 'un-revolutionary historic' types of constitutions (the 'French' v. 'British' type of constitution) within the European Union, can lead to ambiguity and an equivocality which leads to frictions and misunderstandings about the constitutional nature of the European Union; this may fail to contribute to the legitimacy of a consolidated constitutional document.
Keywords: European constitution, constitutionalism, comparative constitutional law, European Union
JEL Classification: K10, N40
Suggested Citation: Suggested Citation