The Treaty of Lisbon: Multilevel Constitutionalism in Action

Abstract

Since years the European Union struggles with its structural and constitutional self-determination in search of a sustainable balance between con-federal and federal options, between inter-governmentalism and supranationalism. This Article understands the Treaty of Lisbon as one step in a long and complex process of constitutionalization in Europe comprising both the evolving European and the national level of constitutional law. It comments on what is sometimes regarded as the failures in the process of constitution-making, and on the improvements achieved by the reform under the Treaty of Lisbon, both in the light of the concept of multilevel constitutionalism. It explains what multilevel constitutionalism means as a theoretical approach to conceptualize the constitution of the European system as an inter-active process of establishing, dividing, organizing, and limiting powers, involving national constitutions and the supranational constitutional framework as two interdependent components of a legal system governed by constitutional pluralism instead of hierarchies. The ongoing process of trial and error in the continued reform of the Union where constitutional initiatives regularly lead to increasingly extensive debates with modest contractual results, with the entry into force of the Treaty of Lisbon yet being uncertain, is taken as an example for explaining multilevel constitutionalism in action: The article seeks to show that both, the process showing increased public participation, and the results achieved in Lisbon are characteristic for the consolidation of a multilevel constitutional structure of a new kind, based upon functioning democratic member states, complementary to them and binding them together in a supranational unit without itself being a state or aiming at statehood.

Keywords: European Union, constitutional process, multilevel constitutionalism, Treaty of Lisbon, democracy, primacy, constitutional pluralism, referendum, Ireland, Constitution for Europe, institutional reform, fundamental rights, subsidiarity, national parliaments, early warning system

JEL Classification: K33