State Aid Law of the European Union – By P. Vesterdorf and M. U. Nielsen
DOI | http://doi.org/10.1111/j.1468-0386.2010.00542_3.x |
Date | 01 January 2011 |
Author | Luca Rubini |
Published date | 01 January 2011 |
eulj_542138..148
BOOK REVIEWS
The Making of a European Constitution. Judges and Law Beyond Constitutive Power. By
Michelle Everson and Julia Eisner. London and New York: Routledge, 2009. xii +244
pp. Hb. £39.95.
The Making of a European Constitution is a challenging read—conceptually complex
and analytically rich. The following review spells out the authors’ core argument,
followed by a few critical observations.
The analytical starting point that gives context to this book is the death of the
constitutional axiom—or, in the words of the authors, ‘constituicide’ (chapter one). In
their view, the constitutional axiom is the idea of political settlement, whereby political
communities (such as nation states), and the political institutions that operate therein,
derive their legitimacy and authority from an agreement between the people of a given
community as to the nature, the form and objectives of that newly constituted
community—a (political) constitutive moment. According to axiomatic theory, the
constitutional legitimacy of law and legal systems (as sites of, for example, constitutive
power) originates from such a politically constituted settlement, ie a constitution. This
follows a kind of Kelsenian logic, whereby the political settlement embodies the foun-
dational Grundnorm upon which the law and the legal system are legitimated. Consti-
tuicide, then, is both a normative evaluation of this premise and an empirically
verifiable observation in relation to the EU.
Normatively, the ‘death’ of which the authors speak is an articulation of an enduring
legacy in constitutional theory, which is derived from a politically tumultuous and
violent early to mid-twentieth century in Europe. As a result of this, the legitimacy of
the political settlement (ie the European nation state) has been cast into doubt. Accord-
ingly, the authors argue that political settlements are exclusionary and un-reflexive—
smothering of any potential revolutionary politics (chapter seven). Additionally,
settlement provides a pejoratively mythological legitimacy for law, legal systems and, in
particular, constitutional adjudication by courts. It is a kind of a priori legitimacy that
circumvents deeper and more socially relevant legitimacy questions. Empirically, they
observe that the EU has failed to reach such a settlement—signified (though not
defined) by the failure of the European Convention to (politically) constitute a Euro-
pean polity. This failure therefore begs the question as to the legitimacy of Union law
and, most significantly, its constitutionalisation of the EU. Constitutionalisation, the
authors argue, is the process by which Union law—at the national and EU level—
serves to define and generate the constitutional parameters of the EU polity and the
institutional relationships therein (ie a constitutive or polity-generative function). They
demonstrate important examples of this: the careful development and maintenance of
the single market; the direction of European integration in terms of finalité (eg a federal
EU); and the balancing of institutional competences (chapter two). In this way, the
post-settlement context of the EU exposes the (already present) legitimacy questions to
even greater scrutiny.
Given the foregoing, the authors’ principal question is: according to what stan-
dards or normative criteria can the practice of Union law—at the domestic and EU
European Law Journal, Vol. 17, No. 1, January 2011, pp. 138–148.
© 2010 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
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