In This Issue

Date01 July 2015
Published date01 July 2015
In This Issue
Agustín José Menéndez
It has become common place to refer to the European Treaties (viz. the Treaty of
European Union and the Treaty on the functioning of the European Union) as the
constitution of the EU. While this reflects the fact that some of the most (if not the
most) important legal rules in Union law are contained in the Treaties (think about
the economic freedoms and the principle of non-distorted competition as making up
most of the canon of constitutionality in EU law), it remains the case that the Treaties
are a constitution of sorts. There has been no democratic constitutional procedure at the
EU level (and consequently no massive infusion of democratic legitimacy to the
Treaties). Moreover, it would be rather far-fetched to claim that the Treaties have
gained over time the constitutional legitimacy and dignity that, say, the British Con-
stitution acquired from the 19th century onwards, and especially during the Second
World War, or the German Fundamental Law of 1949 over the last decades, and very
especially during and after reunification. In the terminology of democratic constitu-
tional theory, while there is no doubt that the Treaties contain key elements of the
material constitutional law of the EU, it is very difficult to conclude that the Treaties
should be characterised as the constitution of the EU, either in formal or in normative
terms. It may be added that in the same way that the Treaties are only a constitution
of sorts, the constitutional theories by reference to which the ‘constitutionalisation’ of
the EU and of EU law have been discussed in the last three decades may be regarded
as constitutional theories of sorts. Indeed, many of the explicit or implicit constitu-
tional theories of European integration assume the radically innovative character of
the EU, which requires thinking anew constitutional categories (and, not infrequently,
democratic categories). The immediate implication of such an assumption is the
categorisation of the whole set of democratic constitutional theories developed by
reference to nation-states as rather irrelevant to the analysis of EU law. Radical
theoretical innovation may well have been exhilarating as an academic enterprise (and
a prerequisite for the most odious but rather unavoidable mission in contemporary
academia: application for research funds). But when the music stopped in 2007 and
Europe fell into crises, it became open to question whether the assumptions on which
a good deal of the new constitutional theories kept on being valid (if they ever were).
The articles contained in this issue may be taken to advocate a different approach
to the development of European constitutional theory. While deeply conscious of the
original traits of the process of European integration, and consequently of EU law,
the authors hold fast to the normative heritage of classical democratic constitutional
theory. That theory was developed by reference to national democratic constitutions.
That does not by itself render it irrelevant to analyse EU law.
Comparative constitutional history is structurally allergic to any assumption of
‘radical innovation’. From that perspective, Bill Davies’s article provides us with a
panorama on the role played by the conflictual relationship between the European
Court of Justice and the German Constitutional Court in the moulding of European
European Law Journal, Vol. 21, No. 4, July 2015, pp. 431–433.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

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