Transformation of EU Constitutionalism

von Matej Avbelj

The EU constitutionalism has been transformed. For the worse. The causes for that are well known. They are the sum of consecutive, unresolved financial, economic, political, humanitarian and security crises. This post is not interested into causal relationship between the crises. It centers instead on their aggregate negative outcome and the possible way ahead. It asks what exactly the EU constitutionalism, as a dominant narrative of European integration, has (d)evolved into and what can be done to fix its fissures?

Can you still remember the EU constitutionalism’s glory days? Those times when the EU, albeit unwritten, legal constitution was taken for granted? The doctrines of primacy, direct effect, pre-emption, human rights protection and the like were claimed by the ECJ and rendered relatively plausible by the national (constitutional) courts. Can you recall the enthusiastic announcement of the ECJ’s Advocate General Jacobs: “Civis Europeus sum”, which was just a few years later turned into a symbolical provision in the Treaty of Maastricht establishing the citizenship of the Union? Destined to become a fundamental status of individuals in the EU, its symbolical nature was defied in the Baumbast case, as, again the ECJ, has turned the conditional Treaty provision into a directly effective one. By instituting a general and directly effective prohibition of discrimination on the basis of nationality across the entire material scope of EU law, the grounds were laid for a strong federal de-alienation effect between the citizens of the Member States, bringing them, at least legally if not yet politically and sociologically, closer to the EU as well as to each other. The seeds for supranational solidarity were hence not just sown, they started taking roots ...

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