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    How Bright is the Future of Constitutionalism in the European Union

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    Igor Stojilovic

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    How Bright is the Future of Constitutionalism in the European Union

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    Igor Stojilovic
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    How Bright is the Future of Constitutionalism in the European Union

    Uploaded by

    Igor Stojilovic

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    © All Rights Reserved
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    of 4

    Arqus Joint Master’s Programme European Studies

    Joint Course in Module 3: Europe and the Law

    How bright is the future of Constitutionalism in the European Union?

    Individual assignment

    Lecturer: Student:
    Prof. Dr. Amelia Díaz Igor Stojilovic

    February 28, 2024


    The contemporary complexities, primarily geopolitical tensions, challenge the role of the

    European Union (EU) as the global actor today. In addition to its often-questioned influence on

    the broader international level, internal processes of the Union, including but not limited to the

    disparities of post-enlargement processes, questions surrounding the European identity, the rise of

    Euroscepticism, lack of participation, issues related to the balance of power and judiciary

    implications, and others, catalyze the long-existing debate on the European Constitution. Although

    the metaphorical assumption of resistance towards it is often described as trying to "push the

    toothpaste back into the tube."1, Haberman's counterquestions of the desirability and practicality

    prove a valid point jointly with addressing the problem of the democratic deficit.2

    Having in mind partly implemented reality of the European Constitution on one side, and the

    execution concerns on the other, this paper highlights main aspects of the formal and functional

    character of the Lisbon Treaty (LT) and its effect on the (future) EU constitutional debate.

    Additionally, I will place my assumption according to afore described goal. Finally, I will argue

    that the choice of constitutional building approach from the ground up in contrast to the top-down

    can galvanise bright future of Constitutionalism in the European Union.

    The topic of European Constitutionalism is not a newly invented initiative but rather a

    reintroduced process that has always been present jointly with any idea of continental unification.

    However, among different potential forms of the political and economic union, a post-war

    decision on the format of the new alliance, pleased the anti-federalists, leaving them to conduct

    "one-eye patrols"3 for the capital C (Constitution) in any future legislative change4.

    Consequently, slow-paced reform responded to the political reality of European integrations and

    supported the request for a more profound and structured outline from 1950-1990. Nevertheless,

    it was just after 2000. that constitutional idea was openly presented in both legislative and political

    1
    Weiler and Haltern, ‘The Autonomy of the Community Legal Order – Through the Looking Glass’ (1996) 37
    Harvard International Law Journal 411, at 423;
    2
    Jürgen Habermas, The Crisis of the European Union: A Response (Cambridge: Polity Press, 2012;
    3
    Conduction a reseach with basic and minimum attention;
    4
    Mads Andenas & John Gardner (2001) Introduction: Can Europe Have a Constitution?, King's Law Journal, 1-4;
    sense, formed firstly in the unratified Constitutional Treaty (2004), and successively, Lisbon

    Treaty (2007). With it, the conversation discourse quickly shifted from Should Europe have to

    Does Europe have a constitution, as researchers continued to assess its de jure and de facto role

    in the wide EU legal framework. One of them, Prof. Dr. Christine Reh, a published author in the

    area of European Politics, analyzed the Lisbon Agreement on its constitutional form and function.
    5
    She concluded that although the Agreement provides basic assumptions towards the Constitution

    of Europe in a formal sense, it lacks wider public acceptance and recognition to become more than

    just "lawyers' law." She recognized the expansion of the European Parliament, European Council,

    and European Central Bank's role and argued that LT imposes supranational elements (for

    example, the role of the Court of Justice), thus undermining the sovereignty of member states in

    both functional and formal sense. Here, I partly agree, as the main incentive was to strengthen the

    internal structure of EU bodies rather than weaken national institutions' role. In contrast, Prof. Reh

    also stated that LT has (minor) symbolic meaning while opposing the growing Euroscepticism6,

    lack of broader acceptance (for instance, the Supreme Court had to approve it in Germany, Latvia,

    and the Czech Republic), and wail of doubts of its real intention.

    Despite the above-listed conclusion, I believe that the Lisbon Treaty is a prime example of a

    practical policy designed to enhance the EU towards the Constitution. There are three main

    arguments why. For one, even though LT enabled provisions on the exemption from the rule and

    opt-out options that seemingly eroded its constitutional power, the differentiated integration

    instrument will consolidate member states in a short period towards a closer alliance.7. Second,

    the existing provisions that list and describe the symbols of the EU were erased in the LT.

    This allowed the document to be presented more seriously, Constitutional-like. This was also done

    so it would not oppose constitutions of a national state. Of course, that does not affect the content

    5
    Reh, Christine. (2009). The Lisbon Treaty: De-Constitutionalizing the European Union?. Journal of Common
    Market Studies. 47;
    6
    Neumayer, L (2008), Euroscepticism as a political label: The use of European Union issues in political competition
    in the new Member States. European Journal of Political Research, 47;
    7
    Ever Looser Union? Differentiated European Integration, Frank Schimmelfennig and Thomas Winzen, Oxford
    University Press, 2020;
    of the Treaty in sense of its form or power, but it does underline the detail attention. Finally, I find

    it comparable and plausible that based on the functionalist theory of integration that emerged after

    the second world war, EU continues to follow the constitution process of the United States of

    America. There, Bill of Rights shepherd the finalisation at the campaign for the acceptance of the

    US Constitution. In context of EU context, Charter of Fundamental Rights of the European Union

    could present a similar stepstone for the future United States of Europe.

    In the expectations for new perspectives on the LT and/or tectonic disturbance in the Treaty, one

    might ask: what will happen next for the slow-moving constitutional snail? Professor of

    Constitutional law, Dr. Leonard Besselink responds in asking for patience - it is a slow-moving

    evolutionary process, rather than revolutionary. 8 He continues by highlights the negative

    externalities of the Constitutional Treaty attempt. Professor Besselink elaborates additionally by

    pointing out that the Agreement from Lisbon inherited the expectations substance of the

    Constitutional Treaty and that it was successful from the fact that it was not focused on the

    unnecessary victorious presentation. Supporting his conclusion and additionally expand on it by

    assuming that the writers of the Lisbon Treaty firstly reviewed, rewrote, reduced, and just then

    accepted to removed problematic provisions. 9 By doing so, proponents of the Constitution

    advertised flexibility, openness to ground-up approach, and understanding of the historical and

    political contexts of the national Constitution. In this regard, it is worth mentioning that the Ireland

    referendum forced a last-minute Constitutional change. Based on that, I would argue that Lisbon

    Treaty at this point presents not only a jointly accepted legal platform with constitutional elements,

    but a successful exercise of participation. This will be crucial in the next constitutional chapter,

    which is expected to occur in the near and very bright future of Constitutionalism in the European

    Union.

    8
    Besselink, Leonard F. M., The Notion and Nature of the European Constitution after the Reform Treaty (January
    18, 2008). Available at SSRN: https://ssrn.com/abstract=1086189;
    9
    Kurpas, Sebastian, The Treaty of Lisbon - How Much 'Constitution' is Left? An Overview of the Main Changes
    (December 11, 2007). CEPS Policy Brief, No. 147, December 2007, Available at SSRN:
    https://ssrn.com/abstract=1334072;

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