New York University Jean Monnet Working Paper No. 5/04
55 Pages Posted: 23 Mar 2010
Date Written: March, 21 2010
The currency of constitutionalism has become the dominant currency of the debates on European integration. But do we really know what we mean by constitutionalism in the European Union? We have moved from talking about a process of constitutionalisation to question whether such process represented a European Constitution (does Europe has a Constitution?). We have then discussed whether the Union required a formal Constitution (does Europe need a Constitution?). Two issues underlie the discussion on both of these questions: whether constitutionalism is the best form of power for the European Union and whether the European Union has the constitutional authority (in the form of a pouvoir constituant) to adopt such form of power.
These constitutional questions can also be linked to two different types of legitimacy identified by Bellamy and Castiglione: regime and polity legitimacy. The first relates to the legitimacy of the institutional and procedural mechanisms through which power is exercised in a polity. The second refers to the need to justify the existence of that polity. In part, the Constitutional Treaty aims at providing the Union with these two forms of legitimacy. The way in which one answers these different questions in the context of the European Union is, in turn, influenced by the way we conceive constitutionalism in general (what does constitutionalism serves for) and the notion of a political community we embrace (what kind of social and political relationship must it embedded). Understood as a normative theory, constitutionalism has been conceived as a set of legal and political instruments limiting power (constitutionalism as limit to power). But it has also been conceived as a repository of the notions of the common good prevalent in a certain community and as an instrument organising power so that it pursues that common good (constitutionalism as polity expression). In between, it is possible to stress instead the role of constitutionalism in creating a framework in which competing notions of the common good can be made compatible or arbitrated in a manner acceptable to all (constitutionalism as deliberation).
Those three core conceptions of constitutionalism and their partial affinity with certain notions of the polity allow me to present the key purpose of this paper: to identify the changing nature of European constitutionalism and its relationship with the intergovernmental aspects of power in the European Union. My argument will be that the role of constitutionalism is changing in the European Union and that its function depends on the relationship between constitutional regime and polity legitimacy and, more generally, between constitutionalism and intergovernmentalism. The prevailing character of European constitutionalism has, so far, been determined by its instrumental relation to intergovernmentalism. However, this relationship may have to be changed in light of the regime changes introduced by the current constitutional processes of the European Union. For these purposes, a distinction will be made between constitutionalism (where individual interests are directly aggregated and deliberation is based on the promotion of universal rules guaranteed, ex-ante, by its generality and abstraction and, ex-post, by nondiscrimination) and intergovernamentalism (where interests are aggregated through the State and deliberation does not aim at universal rules based on the individual status of citizens but reflects the bargaining power of States and generates accommodating agreements between their perceived conflicting interests).
Keywords: EU Law, European Constitution
Suggested Citation: Suggested Citation
Maduro, Miguel Poiares, How Constitutional Can the European Union Be? The Tension between Intergovernamentalism and Constitutionalism in the European Union (March, 21 2010). New York University Jean Monnet Working Paper No. 5/04. Available at SSRN: https://ssrn.com/abstract=1576145 or http://dx.doi.org/10.2139/ssrn.1576145