EC: European Constitutionalism

The clamorous rejection of the European Constitution in national referenda in 2005 was an important moment in the political history both of Europe and the countries that rejected it, including the Netherlands. The rejection of a specific text did not however signal the end of European constitutionalism. European constitutionalism is about the legitimate ordering of power in Europe and implies a far-reaching shift from market building towards a focus on rights, principles and values.

The Lisbon Treaty

The Lisbon Treaty, stripped of most of the overtly constitutional symbols, preserved much of the substance of the original European Constitution. Its provisions on democratic principles and the Charter on Fundamental Rights in particular have given renewed impetus to European constitutionalist thinking. With a focus on citizens' rights and checks over the exercise of public power, such thinking aims to reconceive the European Union in terms of the individual and collective rights of everyone affected by its actions. This includes relationships between citizens and private parties, such as powerful corporations.

European and national legal order

European constitutionalism raises complex issues, like how one should make sense of the relationship between the national legal orders and the European legal order if the borders between them are continuously shifting, and how the principles that govern this relationship are derived from traditional (national) constitutional thinking. Does ‘constitutionalism’ take on a new meaning within an EU that is neither state nor international organisation? As the coherence of national systems is seemingly ever more shaken by European influence, questions such as who safeguards constitutional values, and how they are safeguarded, become increasingly urgent. More concretely, what happens if there is a clash between European fundamental rights and national constitutional values? Is it acceptable if the Luxembourg and Strasbourg courts invalidate, in the name of fundamental European human rights, national statutes that nonetheless enjoy broad support within the relevant national community?

Judicial dialogue

Is there a realistic possibility of judicial dialogue between national constitutional courts and the European Court of Justice? And, if so, what does that mean for a country like the Netherlands where public opinion is much less familiar with the concept and practice of constitutional review of democratically enacted laws than other countries, such as Germany, Italy and the United States? Could European constitutionalism have spillover effects in the national Dutch context, and is that desirable? Obviously, an important aspiration of European constitutionalism is to improve the legitimacy of European law and policies. The role of the (European) judiciary as the ultimate arbiter in constitutional matters raises new and difficult legitimacy questions.

Affiliated researchers