Whose Reason or Reasons Speak Through the Constitution? Introduction to the Problematics (original) (raw)

Constitutions in the European Union – Some Questions of Conflict and Convergence

ERA Forum, 2011

The author explores two aspects of the relationship between the "constitution" of the EU and member states' constitutions-their potential for conflict, and possible elements of structural convergence. He considers the "constitutionalisation" of the EU as a starting point, as an ongoing process, and as a desired result. The development of an autonomous institutional structure of the EU since the 1980s is presented, preliminarily culminating, after the failure of the Constitutional Treaty, in the explicitly non-statelike concept of the Lisbon Treaty. The author discusses the notion of "constitution" in a number of senses-formal vs. material, static vs. functional etc., and concludes that the potential conflict between the autonomy of EU law and the sovereignty of Member States is existential and cannot be resolved by legal means, which puts the national judge under a permanent challenge as he is obliged to serve two masters, EU law and national law. However, there is room for constructive coexistence of the two legal orders, and if considered as "non-momentary" constitutional systems "without an a priori claim of logical consistency" there is scope for mutual interaction-be it in a positive, "cross-fertilising", or a negative, intruding way, and even convergence.

Constitutions, Constitutionalism, and the European Union

European Law Journal, 2001

The institutional reforms of the EU, coupled with the EU Charter of Fundamental Rights, have fuelled the debate about a European Constitution. This paper begins by examining the nature of constitutions and constitutionalism. The focus then turns to the EU itself. It is argued that the Community has indeed been transformed into a constitutional legal order, and that the arguments to the contrary are not convincing. This does not however mean that the EU has, or should have, a European Constitution cognisable as such which draws together the constitutional articles of the Treaties, together with the constitutional principles articulated by the European Court of Justice. The diculties with this strategy are examined in detail, and the conclusion is that we should not at present pursue this course. It would be better to draw on the valuable work done by the European University Institute in its recent study in order to simplify and consolidate the Treaties.

The European Court of Justice as a Constitutional Court. Legal Reasoning in a Comparative Perspective

Sant'Anna School of Advanced Studies, Department of Law, STALS Research Paper 4/2014

After having briefly presented some institutional aspects of the Court of Justice of the European Union, the present report analyses forty of its leading cases in order to assess the general characteristics of the legal reasoning developed by the Court in interpreting the Treaties. The report underlines the importance of teleological interpretation and arguments from precedents, the frequency and cogency of the arguments based on the principle of the rule of law, the difficulty for the Court in referring to the political nature of the Union and the tendency to eschew constitutional rhetoric. Above all, the report underlines the high degree of impersonality that the Court is able to achieve in its judgments and concludes that it depends on a variety of factors such as the collegiate nature of the judgments, their subject matter, the declining but persisting influence of the French model, the need for translation and informatisation, the extensive use of precedents and literal self-quotations, and the contradictory and unsettled status of the Court of Justice as sensu lato constitutional court of the European legal space.