European „Frankenstein Constitutionalism“: Art. 2 TEU as a Federal Homogeneity Clause

Abstract

The thesis of the following contribution is that the CJEU's insertion of a federal homogeneity clause into the EU's primary law is an a-historical and dysfunctional "legal transplant" that does not correspond to the state of European integration. It has its place in specific state constitutional systems, which needed or need an axiological backing of its foundational order, but cannot adequately organize the interaction between the EU and the member states. In post-war Germany, value constitutionalism had an important stabilizing effect on society. It contributed to the symbolic reproduction of a society that needed new patterns of orientation after the horror of National Socialism. The insertion of such a clause into the basic order of the EU is taken out of context and brings with it dysfunctional and opportunistic results:

First, the "value constitutionalism" promoted by the CJEU has no meaningful place in an order in which a technocratically oriented supranational institutional order meets developed, heterogeneous and highly politicized member state political systems. Value constitutionalism is a specific constitutionalist reaction to a historical challenge, not an arbitrarily transplantable element of constitutional thinking.

Second, the CJEU's efforts to stifle the resurgence of the political in the EU member states with a depoliticized "top-down" construction is damaging the democratic nature of the system as a whole.

Thirdly, the CJEU lacks rational standards with which it can decide which further development of constitutional systems is acceptable and which should (allegedly) be inadmissible. This can only be decided in a political-constitutional process. Its decisions amount to subjective arbitrariness.

The term "Frankenstein constitutionalism" stands for constitutional theory and constitutional law thinking that eclectically assembles elements of goverance and legal institutions of different origins and functions and assembles them into a disparate creature. It describes an approach that inserts implants into a constitutional order that "function" superficially, but at the same time destroy the integrity of the whole and create an entity that breaks with political culture and societal integrity. The idea has also recently been used in the context of describing the evolution of liberal EU Member States with dominating counter-majoritarian elements into “illiberal states”. The CJEU’s case law on Art. 2 TEU is such a form of constitutionalism.

Keywords: European Union, Constitutionalism, Federalism, Values, Homogeneity, Court of Justice

JEL Classification: K10, K33