European multi-level democracy as seen from the principle of constitutional loyalty

• Pages: 75-100
• Author: Rosario Tur Ausina

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EUROPEAN MULTI-LEVEL DEMOCRACY AS SEEN FROM THE

PRINCIPLE OF CONSTITUTIONAL LOYALTY.

ROSARIO TUR AUSINA

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SUMMARY: 1. MULTI-LEVEL EUROPEAN CONSTITUTIONALISM. THE

“BLURRING” OF POWER. 2. RECOURSE TO THE PRINCIPLE OF CONSTI-

TUTIONAL LOYALTY IN THE EUROPEAN ORDER. ORIGINS AND CONFI-

GURATION. 2.1. The duty of loyalty of the states to the European cons-

titutional project. 2.2. The Union’s duty of loyalty to the constitutional

acquis of the states. 2.3. The duty of interinstitutional loyalty. 2.4. The

legal-procedural consequences of the principle of European loyalty. 2.5.

Where is loyal cooperation heading? The principle of European cons-

titutional loyalty. 3. BIDIRECTIONALITY AND POLARISATION. IMPER-

FECT LOYALTY. 4. LOYALTY AND EUROPEAN CONSTITUTIONAL SENTI-

MENT. 4.1. Identity(ies). 4.2. Leadership(s). 5. BY WAY OF EPILOGUE.

LOYALTY AND CROSS-LEVEL CONSTITUTIONALISM.

1. MULTI-LEVEL EUROPEAN CONSTITUTIONALISM. THE “BLURRING”

OF POWER.

The European constitutional order, multi-level by nature, has been moving

in a complex dynamic for decades that obliges us to reformulate the classic

dogmatic categories (division of powers, sovereignty, fundamental rights,

constitutional justice...). The different levels of government that interact in

our European constitutional order are mutating internally, but also in their

relations with each other, both horizontally and vertically, in such a way that it is

ROSARIO TUR AUSINA

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complicated to understand how they work and to make them really operational.

There is thus a ‘blurring’ of power and, with it, of the limits and contours of

people’s rights, with necessarily shared spaces and responsibilities where the

public and the private domains are constantly intertwined.

Together with BAUMAN, who speaks of powers and ‘liquid’ societies,1

FERRARESE also reminds us that none of the subjects and entities that have been

attributed power in one way or another is, in itself, “complete”.2 The decision,

execution, responsibility, control… over a matter, are constantly shared between

powers, in collaboration with the counter-powers and at the different levels of

government, it being practically impossible to find aspects or matters where

several of them do not converge. In short, it is such a rearrangement of public

and private powers and counterpowers where, in our opinion, the principle of

European constitutional loyalty (on which we will focus below) takes on its full

meaning. A principle that represents, in broad terms, the degree of assimilation,

knowledge and consideration that some instances have of others, as well as that

which any operator – public and private – has of this shared common system and

its basic principles. Ultimately, the aim is the constant integration of an order, with

sub-orders, which by nature is permanently open, but necessarily connected, if it

is to really function. A system that operates through the confluence and balance

that is achieved around three types of identities: national cultural identities

based on a cultural heritage, i.e. a language, myths and symbolic ties; secondly,

an instrumental identity that has presided over much of the EU’s evolution and

which is present in its daily dynamics, according to which identity is chosen

according to the benefits and utilities to be obtained; and finally a civic identity,

also of a “rational” type like the second, sustained by agreement on common

legal-constitutional rules, principles and values.3 It is in the search for coherent

and rational balances and connections between these three identities that the

principle of European constitutional loyalty operates, in an attempt to ensure

that the European political project can be consolidated.

In fact, balances are not always achieved, nor are identities always sustained,

so the European project reacts to crises and tensions of a constitutional-

normative nature by contracting and accentuating the intergovernmental

element. This sometimes leads, dangerously, to a functional interpretation of

democracy in the service of interests that are assessed from the point of view of

normative effectiveness/efficiency.

1 BAUMAN, Zygmunt, BORDONI, Carlo, Estado de crisis, Paidós, Barcelona, 2016, pp. 45 ff.

2 FERRARESE, Maria Rosaria, “Governance. Sugli effetti politici e giuridic di una soft

revolution”, &0, vol. 45, no. 2, 2014, p. 163.

3 RUIZ JIMÉNEZ, Antonia María, “Identidad europea y lealtad a la nación. Un compromiso

posible”, Revista Española de Ciencia Política, no. 12, 2005, p. 103.