Rethinking European Law's Supremacy with Comments by Damian Chalmers, Rainer Nickel, Florian Rodl, Robert Wai

Abstract

The rejection of the European Constitutional Treaty by the French and Dutch electorates seems to reflect, to a non-majoritarian but decisive degree, the uneasiness that the citizens feel towards an ever more important Europe which they perceive as governing them from above or from the outside with insufficient democratic legitimacy, and without the power that effectively reflects their concerns, in particular as far as the future of European social models is concerned. The supremacy doctrine represents the legal incarnation of the anxieties regarding these concerns. This doctrine seems substantively biased in that its promotion of European law implicitly ranks economic rationality higher than social rationality, and systems integration higher than social integration.

This reading of the supremacy doctrine has its fundamentum in re. But so has a non-orthodox interpretation of this doctrine which assigns more weight to the autonomy of constitutional democracies and interprets supremacy as a doctrine compensating nation state failures and imposing legal commitments of co-operation on the Member States. European law, pursuing such objectives, can be understood as a new species of conflict of laws. This law derives its legitimacy from its compensatory functions, in particular, the potential of European law to respond to the structural inability of nation states to avoid the external effects of their decisions on the citizens of foreign jurisdictions and to deal with transnational problems democratically.

Christian Joerges' plea for a supranational law of conflict of laws based on conflict of laws methodology which aims to accomplish a European unitas in diversitas is commented on by Robert Wai, Toronto, Damian Chalmers, London, Rainer Nickel, Florence and Florian Roedl, Florence.

Keywords: EU constitution, EU law, supremacy