In This Issue

• Date: 01 July 2015
• Published date: 01 July 2015
• DOI: http://doi.org/10.1111/eulj.12145
• Author: Agustín José Menéndez

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

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European Law Journal, Vol. 21, No. 4, July 2015, pp. 431–433.

© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

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