Can Democratic and Social Constitutionalism be still reconciled with European integration?-Contra... more Can Democratic and Social Constitutionalism be still reconciled with European integration?-Contrary to opinions regarding national sovereignty and the EU as antithetic, the article examines the potential for their complementary relationship by drawing from the seminal analysis by Alan Milward. It restates that originally the process of European integration was instrumental to the pursuit of the foundational commitments inspiring national democratic and social constitutional self-government and that only with the crisis of the social state in mid 1970s was European integration reoriented to transform in neoliberal terms democratic and social constitutionalism. As in the most recent evolutionary phase this trend is maintained and radicalized, Milward's idea of conceiving European integration with a view to rescue national constitutional self-government may inspire attempts at redressing the contents and structures of EU law.
Modern government needs to produce knowledge: as a result, modern governments rule relying on num... more Modern government needs to produce knowledge: as a result, modern governments rule relying on numbers. This creates the risk of a slide towards the government of numbers. This can be illustrated by revisiting the rise of "numerical indicators" in the government of European monetary and fiscal policy. Contrary to what is usually assumed, the rise of numbers was originally intended to facilitate the coordination of national fiscal policies. With the establishment of the European Monetary System, and the shift from the common to the single market, the role of numbers changed economically, even if not yet legally. The consolidation of government by numbers is to be dated to the launch of Economic and Monetary Union. Twenty years of EMU have, however, proven that the proliferation of numbers has not resulted in the reining in of discretionality, but in its cloaking, leading to arbitrariness.
Piero Calamandrei es bien conocido en los países de habla hispana en tanto que procesalista. Sólo... more Piero Calamandrei es bien conocido en los países de habla hispana en tanto que procesalista. Sólo recientemente, gracias a las traducciones de Perfecto Andrés Ibáñez, ha comenzado a ser conocida su producción y acción en tanto que constituyente y constitucionalista. Se introducen en este trabajo las traducciones de cuatro breves textos de Calamandrei que vertebran su visión de la Constitución, en la que desempeña un papel fundamental la resistencia al nazismo y el fascismo como sustento de la aspiración normativa del Estado Democrático Social y de Derecho, único capaz de realizar la justicia y la libertad.
El Cronista del Estado Social y Democrático de Derecho, 2019
Conversación con Rein Müllerson que parte de su último libro (Dawn of a New Order) para ocuparse ... more Conversación con Rein Müllerson que parte de su último libro (Dawn of a New Order) para ocuparse de su formación, sus influencias intelectuales y los temas fundamentales de su obra
There is a growing number of fundamental conflicts between European law and national constitution... more There is a growing number of fundamental conflicts between European law and national constitutional norms. Such “constitutional conflicts” are said to be caused by specific dynamics in the relationships between national and supranational courts. In this article, it is argued that constitutional conflicts need to be considered in their wider context, in particular, taking into account the considerable differences in constitutional grammar, and in social and cultural orientation. Contrary to what is usually assumed, national constitutional norms and supranational European law are not dialects of one and the same “legal” tongue, but, on the contrary, they have come to realise and uphold very different fundamental principles. On such a basis, conflicts are likely to persist and grow in the coming future.
El programa OMT mediante el que el Banco Central Europeo puede adquirir deuda pública de los Esta... more El programa OMT mediante el que el Banco Central Europeo puede adquirir deuda pública de los Estados de la eurozona que sufren una crisis fiscal fue recurrido ante el Tribunal Constitucional alemán, que a su vez planteó una cuestión prejudi-cial al Tribunal de Justicia de la Unión Europea. En este comentario se reconstruyen los argumentos principales de las tres decisiones dictadas en el asunto. Se sostiene en las conclusiones que el Tribunal de Justicia ha eludido, más que dado respuesta, a las cuestiones fundamentales planteadas por el guardián de la constitucionalidad ale-mana, al no tener en cuenta la diferencia fundamental entre amplia discrecionalidad en el ejercicio de las competencias y en la definición de las mismas, y al asumir implí-citamente (a invitación del abogado general) que el programa OMT era una medida excepcional, cuando el mismo es síntoma del colapso del marco normativo de la Unión Económica y Monetaria.
Palabras clave Unión Económica y Monetaria; identidad constitucional; control de compe-tencias de la Unión Europea; BCE; deuda pública.
Community law was established as a meta-legal order to provide a systematic solution to conflict... more Community law was established as a meta-legal order to provide a systematic solution to conflicts betweeen national legal orders. Integration, and in particular integration of law, was required to tackle the functional and normative problems that ensued from the disorganised co-existence of State legal orders in Europe. Integration of law was made compatible with the preservation of autonomy to define the national socio-economic model and structure because early European legislation organised the co-operation of national legal orders. The power to regulate and mould the economy was reinforced, at the same time that the sharpest corners of national power were clipped (by reference to the formal principle of non-discrimination). From the late seventies, the point and purpose of European integration was redefined. L’Europe par le marché resulted in integration through law, making of law the key means through which national regulatory and monetary policies were made to compete with each other. The result was the progressive definition of the content of law by the exercise of economic freedoms, a most peculiar process leading to turning law into a false commodity. Since the late 2000s, the role of law in the process of European integration has been increased to the detriment of governance arrangements, but this has only exacerbated the commodification of law and its submission to the imperative of ensuring the store value of money.
This chapter reconstructs the content of the key norms and practices constituting and disciplinin... more This chapter reconstructs the content of the key norms and practices constituting and disciplining public power in the European Union (and in particular, within the Eurozone). The central thesis made in it is that the organisation of public power in Europe is characterised by the primacy assigned to private property, entrepreneurial freedom and sound money, and by the limitation, both substantive and procedural, of democratic decision-making. The abstract and concrete weight assigned to economic freedoms, the multiplication of decision-making procedures alternative to representative decision-making, and the entrenchment of structural biases in favour of private property and entrepreneurial freedom have largely "taken the risk out of democracy" by fragmenting, enervating and pulverising public power
The two books that are the object of this review have, quite obviously, the same author but deal ... more The two books that are the object of this review have, quite obviously, the same author but deal with different subjects: the history and the present predicament of sovereignty (Sovereignty: The Origin and Future of a Political and Legal Concept) and the relationship between national and supranational fundamental norms and institutions (The Constitution of European Democracy). However, when the two books are read together (if possible with an eye kept on a third volume that has also been recently published: Constitutionalism: Past, Present and Future (Oxford: Oxford University Press, 2016), the reader is exposed to a systematic, careful, balanced and insightful reconstruction of the way in which public power is constituted, structured and organised in contemporary Europe.
The various, overlapping and mutually reinforcing crises that have hit the European Union since 2... more The various, overlapping and mutually reinforcing crises that have hit the European Union since 2007 have accelerated and radicalised the transformation of the organisation of power both at the supranational and at the national levels. As shown in Section I, the government of the crisis has resulted in major changes to both structural and substantive European constitutional law through the taking of punctual decisions, the starting of new constitutional practices and the adoption of structural reforms. Explicit constitutional reforms (e.g., reforms of the treaties of the Union or national constitutional reforms) have been few and far between (with the sole and problematic exception of the reform of Article 136 lFUE and national constitutional reforms to patriate the so-called golden rule). The fact that we can observe major changes in European constitutional law without an explicit process of constitutional reform makes it appropriate to speak of a mutation of the European constitution. In Section 2, I raise some constitutional perplexities regarding the mutation of European constitutional law. In sub-section 2.1, I consider some of the arguments that have been raised that raise doubts about the constitutional soundness of specific elements of crisis government. My claim is that the discussion is bound to be inconclusive if the terrain in which it proceeds is indeed that favoured by institutional actors. It is necessary to consider the soundness of each specific element of crisis government in light of the constitutional soundness of the emerging organisation of power in Europe as a whole, and it is necessary to consider the soundness of the arguments being put forward, taking seriously that the consistency of constitutional practice has to be considered over time. In sub-section 2.2, I tum the debate upside down by considering the impact that the mutation of European constitutional law is having on the grammar of democratic constitutional law, and consequently, on what can be decided through law. From being a servant of the Social and Democratic Rechtsstaat, European law has been turned into the maiden of the consolidating State of authoritarian governance. Two developments are of essence. Firstly, the transformation of the Rechtsstaat into a state of rules, by means of disconnecting rules from principles and introducing a spurious hierarchy within rules. Secondly, the cloaking of arbitrariness behind the form of law, through the banalisation of emergency, the hiding of breaches of law under conflicts between legal orders and the creation of false norms and false sanctions. The law that is emerging from the mutation of the European constitution is instrumental in preventing political and economic debate. We are thus back to legal fetishism.
Not seven but (almost) eleven years after the first " non‐conventional " monetary measure impleme... more Not seven but (almost) eleven years after the first " non‐conventional " monetary measure implemented by the European Central Bank, European institutions have (again) proclaimed that the European crises are over. The growth of economic activity is regarded as herald of a radical turn in the fortunes of the old continent, and especially of the Eurozone. A strong coming tide is expected, boosted by the expansive economic policies implemented by other big blocs, most outstandingly the US. All boats—we are told—will be lifted, even the much‐battered Greek ship. After not only sweat, blood, toil and tears, but also public spending cuts, tax increases and a dramatic wage devaluation, it is possible (even if far from certain) that the government of the Hellenic Republic would be allowed to go " off programme " by the end of the summer.
The deep transformation of the practice of European law calls for a systematic rethinking of the ... more The deep transformation of the practice of European law calls for a systematic rethinking of the theories with the help of which European law is analysed, reconstructed and assessed. In this Article, I test the reconstructive potential and the normative soundness of constitutional pluralism as a constitutional theory to make sense of European integration. In Section II, I disaggregate the concept, by means of setting in their wider context the different conceptions of constitutional pluralism that had been advocated. In Section III, I show why the reconstructive potential of the most sophisticated version of constitutional pluralism, pluralistic federalism, has been drastically limited by the deep transformation of the practice of European law. In Section IV, I consider the limits of constitutional pluralism as a normative theory of European integration. The last section holds the conclusions.
Under the cloth of the projection of the national principle of prop
ortionality to Union law, Eur... more Under the cloth of the projection of the national principle of prop ortionality to Union law, European courts have radically altere d the substance of European law. This has been done both to supranational and national constitutional law and by means of redefining its substantive content. European courts have through proportionality assigned an abstract and a concrete consti tutional weight to the right to private property and to entrepreneurial freedom through the four economic freedoms and the principle of undistorted competition. That has placed outside the realm of the constitutionally possible key public policies without which some of the fundamental collective goods at the core of the Social and Democratic Rechtsstaat become extremely vulnerable. This paper shows how this accentuated bias of the European socio-economic constitution follows from the way in which European courts have defined economic freedoms as the yardstick of European constitutionality. This entails the automatic assignment of the argumentative benefit to economic freedoms, the construction of all other constitutional goods in the semblance of economic freedoms, and the use of asymmetric standards of evidence when having to justify the adequacy and necessity of economic freedoms and other constitutional goods.
'What do you think of Europe? Do you fear being too opinionated? In that case, let me try to answ... more 'What do you think of Europe? Do you fear being too opinionated? In that case, let me try to answer my own question. It seems to me that after the great dream of a United Europe, we have made all that we could (and what we could not) to destroy its very foundations. We have sent to hell the common history, the common politics, the common economics. The only ideal that we had managed to keep whole was that of peace. After centuries of killing each other savagely, we were exhausted. But we have forgotten all this, so these poor migrants are the perfect excuse to build old and new borders with barbed wire. They say that terrorists hide among the migrants, forgetting that these poor souls are themselves escaping from the terrorists'. Andrea Camilleri, L'altro capo del filo 1
Europe has been badly hit by several overlapping crises. This
paper explores how the said crises... more Europe has been badly hit by several overlapping crises. This paper explores how the said crises were triggered by, and in turn, aggravated, a structural crisis of European law. By doing so, the concrete implications of ‘austerity’ in constitutional terms are spelled out. Firstly, the crises have led to punctual decisions and structural reforms honouring European constitutional norms in the breach. Secondly, the government of the crises has facilitated the radicalisation of the ongoing mutation of European constitutional law, in particular changes to the structural and substantive constitutional law which have locked in a constitutional vision of sorts at odds with the regulatory ideal of the Social and Democratic Rechtsstaat. Thirdly, the very nature of European law, and in particular its condition of grammar of democratic law, has been endangered: European law is in the process of becoming an instrument of authoritarian governance.
This paper argues that to make sense of Brexit, we have to start by clarifying what was the actua... more This paper argues that to make sense of Brexit, we have to start by clarifying what was the actual content and relevance of the ‘Brexit deal’ agreed between the United Kingdom and the European Union in February 2016, and how that deal allowed the British Prime Minister to shape the terms of the debate. It must further be recognized that the causes of the leave victory are many and complex. It would be highly reductionistic – and precipitated – to conclude that leavers are rabid nationalists. This not only entails a confused and reductionist understanding of what nationalism is about, but also misunderstands both how the migration issue is shaping political debate in Britain and the rest of Europe, and the weight that the ongoing mutation of the EU is likely to have had in the outcome. For Brexit to be turned into a democratic shock, with the potential of leading to a fairer and more democratic EU and UK, it is necessary to avoid Brexit as usual and take Brexit as the incentive to redefine what European integration is and should be.
La Unión Europea atraviesa una crisis larga y profunda. Del calibre
de la misma dan sobrada cuen... more La Unión Europea atraviesa una crisis larga y profunda. Del calibre de la misma dan sobrada cuenta las tablas que acompañan a este trabajo. Hemos cruzado el umbral del noveno año de crisis económica. Sólo en 2014 la Eurozona en su conjunto superó el nivel de renta de 2008, algo que aún no han hecho varios países de la misma, incluido el nuestro. Pero no sólo el producto interior bruto se ha resentido; lo que es mucho más importante y relevante, la cohesión social y económica se ha deteriorado hasta niveles radicalmente inaceptables en Estados que se proclaman a sí mismos como sociales y democráticos de Derecho. Incluso en aquellos países en los que la crisis ha causado a primera vista menos estragos, la reciprocidad y la inclusión social han sido gravemente dañadas. Tras la retórica del segundo “milagro económico” alemán se pierde de vista no sólo que las tasas de cre- cimiento del país germano han sido pírricas, sino que no han servido para reducir los niveles de pobreza, que de hecho han aumentado.
Can Democratic and Social Constitutionalism be still reconciled with European integration?-Contra... more Can Democratic and Social Constitutionalism be still reconciled with European integration?-Contrary to opinions regarding national sovereignty and the EU as antithetic, the article examines the potential for their complementary relationship by drawing from the seminal analysis by Alan Milward. It restates that originally the process of European integration was instrumental to the pursuit of the foundational commitments inspiring national democratic and social constitutional self-government and that only with the crisis of the social state in mid 1970s was European integration reoriented to transform in neoliberal terms democratic and social constitutionalism. As in the most recent evolutionary phase this trend is maintained and radicalized, Milward's idea of conceiving European integration with a view to rescue national constitutional self-government may inspire attempts at redressing the contents and structures of EU law.
Modern government needs to produce knowledge: as a result, modern governments rule relying on num... more Modern government needs to produce knowledge: as a result, modern governments rule relying on numbers. This creates the risk of a slide towards the government of numbers. This can be illustrated by revisiting the rise of "numerical indicators" in the government of European monetary and fiscal policy. Contrary to what is usually assumed, the rise of numbers was originally intended to facilitate the coordination of national fiscal policies. With the establishment of the European Monetary System, and the shift from the common to the single market, the role of numbers changed economically, even if not yet legally. The consolidation of government by numbers is to be dated to the launch of Economic and Monetary Union. Twenty years of EMU have, however, proven that the proliferation of numbers has not resulted in the reining in of discretionality, but in its cloaking, leading to arbitrariness.
Piero Calamandrei es bien conocido en los países de habla hispana en tanto que procesalista. Sólo... more Piero Calamandrei es bien conocido en los países de habla hispana en tanto que procesalista. Sólo recientemente, gracias a las traducciones de Perfecto Andrés Ibáñez, ha comenzado a ser conocida su producción y acción en tanto que constituyente y constitucionalista. Se introducen en este trabajo las traducciones de cuatro breves textos de Calamandrei que vertebran su visión de la Constitución, en la que desempeña un papel fundamental la resistencia al nazismo y el fascismo como sustento de la aspiración normativa del Estado Democrático Social y de Derecho, único capaz de realizar la justicia y la libertad.
El Cronista del Estado Social y Democrático de Derecho, 2019
Conversación con Rein Müllerson que parte de su último libro (Dawn of a New Order) para ocuparse ... more Conversación con Rein Müllerson que parte de su último libro (Dawn of a New Order) para ocuparse de su formación, sus influencias intelectuales y los temas fundamentales de su obra
There is a growing number of fundamental conflicts between European law and national constitution... more There is a growing number of fundamental conflicts between European law and national constitutional norms. Such “constitutional conflicts” are said to be caused by specific dynamics in the relationships between national and supranational courts. In this article, it is argued that constitutional conflicts need to be considered in their wider context, in particular, taking into account the considerable differences in constitutional grammar, and in social and cultural orientation. Contrary to what is usually assumed, national constitutional norms and supranational European law are not dialects of one and the same “legal” tongue, but, on the contrary, they have come to realise and uphold very different fundamental principles. On such a basis, conflicts are likely to persist and grow in the coming future.
El programa OMT mediante el que el Banco Central Europeo puede adquirir deuda pública de los Esta... more El programa OMT mediante el que el Banco Central Europeo puede adquirir deuda pública de los Estados de la eurozona que sufren una crisis fiscal fue recurrido ante el Tribunal Constitucional alemán, que a su vez planteó una cuestión prejudi-cial al Tribunal de Justicia de la Unión Europea. En este comentario se reconstruyen los argumentos principales de las tres decisiones dictadas en el asunto. Se sostiene en las conclusiones que el Tribunal de Justicia ha eludido, más que dado respuesta, a las cuestiones fundamentales planteadas por el guardián de la constitucionalidad ale-mana, al no tener en cuenta la diferencia fundamental entre amplia discrecionalidad en el ejercicio de las competencias y en la definición de las mismas, y al asumir implí-citamente (a invitación del abogado general) que el programa OMT era una medida excepcional, cuando el mismo es síntoma del colapso del marco normativo de la Unión Económica y Monetaria.
Palabras clave Unión Económica y Monetaria; identidad constitucional; control de compe-tencias de la Unión Europea; BCE; deuda pública.
Community law was established as a meta-legal order to provide a systematic solution to conflict... more Community law was established as a meta-legal order to provide a systematic solution to conflicts betweeen national legal orders. Integration, and in particular integration of law, was required to tackle the functional and normative problems that ensued from the disorganised co-existence of State legal orders in Europe. Integration of law was made compatible with the preservation of autonomy to define the national socio-economic model and structure because early European legislation organised the co-operation of national legal orders. The power to regulate and mould the economy was reinforced, at the same time that the sharpest corners of national power were clipped (by reference to the formal principle of non-discrimination). From the late seventies, the point and purpose of European integration was redefined. L’Europe par le marché resulted in integration through law, making of law the key means through which national regulatory and monetary policies were made to compete with each other. The result was the progressive definition of the content of law by the exercise of economic freedoms, a most peculiar process leading to turning law into a false commodity. Since the late 2000s, the role of law in the process of European integration has been increased to the detriment of governance arrangements, but this has only exacerbated the commodification of law and its submission to the imperative of ensuring the store value of money.
This chapter reconstructs the content of the key norms and practices constituting and disciplinin... more This chapter reconstructs the content of the key norms and practices constituting and disciplining public power in the European Union (and in particular, within the Eurozone). The central thesis made in it is that the organisation of public power in Europe is characterised by the primacy assigned to private property, entrepreneurial freedom and sound money, and by the limitation, both substantive and procedural, of democratic decision-making. The abstract and concrete weight assigned to economic freedoms, the multiplication of decision-making procedures alternative to representative decision-making, and the entrenchment of structural biases in favour of private property and entrepreneurial freedom have largely "taken the risk out of democracy" by fragmenting, enervating and pulverising public power
The two books that are the object of this review have, quite obviously, the same author but deal ... more The two books that are the object of this review have, quite obviously, the same author but deal with different subjects: the history and the present predicament of sovereignty (Sovereignty: The Origin and Future of a Political and Legal Concept) and the relationship between national and supranational fundamental norms and institutions (The Constitution of European Democracy). However, when the two books are read together (if possible with an eye kept on a third volume that has also been recently published: Constitutionalism: Past, Present and Future (Oxford: Oxford University Press, 2016), the reader is exposed to a systematic, careful, balanced and insightful reconstruction of the way in which public power is constituted, structured and organised in contemporary Europe.
The various, overlapping and mutually reinforcing crises that have hit the European Union since 2... more The various, overlapping and mutually reinforcing crises that have hit the European Union since 2007 have accelerated and radicalised the transformation of the organisation of power both at the supranational and at the national levels. As shown in Section I, the government of the crisis has resulted in major changes to both structural and substantive European constitutional law through the taking of punctual decisions, the starting of new constitutional practices and the adoption of structural reforms. Explicit constitutional reforms (e.g., reforms of the treaties of the Union or national constitutional reforms) have been few and far between (with the sole and problematic exception of the reform of Article 136 lFUE and national constitutional reforms to patriate the so-called golden rule). The fact that we can observe major changes in European constitutional law without an explicit process of constitutional reform makes it appropriate to speak of a mutation of the European constitution. In Section 2, I raise some constitutional perplexities regarding the mutation of European constitutional law. In sub-section 2.1, I consider some of the arguments that have been raised that raise doubts about the constitutional soundness of specific elements of crisis government. My claim is that the discussion is bound to be inconclusive if the terrain in which it proceeds is indeed that favoured by institutional actors. It is necessary to consider the soundness of each specific element of crisis government in light of the constitutional soundness of the emerging organisation of power in Europe as a whole, and it is necessary to consider the soundness of the arguments being put forward, taking seriously that the consistency of constitutional practice has to be considered over time. In sub-section 2.2, I tum the debate upside down by considering the impact that the mutation of European constitutional law is having on the grammar of democratic constitutional law, and consequently, on what can be decided through law. From being a servant of the Social and Democratic Rechtsstaat, European law has been turned into the maiden of the consolidating State of authoritarian governance. Two developments are of essence. Firstly, the transformation of the Rechtsstaat into a state of rules, by means of disconnecting rules from principles and introducing a spurious hierarchy within rules. Secondly, the cloaking of arbitrariness behind the form of law, through the banalisation of emergency, the hiding of breaches of law under conflicts between legal orders and the creation of false norms and false sanctions. The law that is emerging from the mutation of the European constitution is instrumental in preventing political and economic debate. We are thus back to legal fetishism.
Not seven but (almost) eleven years after the first " non‐conventional " monetary measure impleme... more Not seven but (almost) eleven years after the first " non‐conventional " monetary measure implemented by the European Central Bank, European institutions have (again) proclaimed that the European crises are over. The growth of economic activity is regarded as herald of a radical turn in the fortunes of the old continent, and especially of the Eurozone. A strong coming tide is expected, boosted by the expansive economic policies implemented by other big blocs, most outstandingly the US. All boats—we are told—will be lifted, even the much‐battered Greek ship. After not only sweat, blood, toil and tears, but also public spending cuts, tax increases and a dramatic wage devaluation, it is possible (even if far from certain) that the government of the Hellenic Republic would be allowed to go " off programme " by the end of the summer.
The deep transformation of the practice of European law calls for a systematic rethinking of the ... more The deep transformation of the practice of European law calls for a systematic rethinking of the theories with the help of which European law is analysed, reconstructed and assessed. In this Article, I test the reconstructive potential and the normative soundness of constitutional pluralism as a constitutional theory to make sense of European integration. In Section II, I disaggregate the concept, by means of setting in their wider context the different conceptions of constitutional pluralism that had been advocated. In Section III, I show why the reconstructive potential of the most sophisticated version of constitutional pluralism, pluralistic federalism, has been drastically limited by the deep transformation of the practice of European law. In Section IV, I consider the limits of constitutional pluralism as a normative theory of European integration. The last section holds the conclusions.
Under the cloth of the projection of the national principle of prop
ortionality to Union law, Eur... more Under the cloth of the projection of the national principle of prop ortionality to Union law, European courts have radically altere d the substance of European law. This has been done both to supranational and national constitutional law and by means of redefining its substantive content. European courts have through proportionality assigned an abstract and a concrete consti tutional weight to the right to private property and to entrepreneurial freedom through the four economic freedoms and the principle of undistorted competition. That has placed outside the realm of the constitutionally possible key public policies without which some of the fundamental collective goods at the core of the Social and Democratic Rechtsstaat become extremely vulnerable. This paper shows how this accentuated bias of the European socio-economic constitution follows from the way in which European courts have defined economic freedoms as the yardstick of European constitutionality. This entails the automatic assignment of the argumentative benefit to economic freedoms, the construction of all other constitutional goods in the semblance of economic freedoms, and the use of asymmetric standards of evidence when having to justify the adequacy and necessity of economic freedoms and other constitutional goods.
'What do you think of Europe? Do you fear being too opinionated? In that case, let me try to answ... more 'What do you think of Europe? Do you fear being too opinionated? In that case, let me try to answer my own question. It seems to me that after the great dream of a United Europe, we have made all that we could (and what we could not) to destroy its very foundations. We have sent to hell the common history, the common politics, the common economics. The only ideal that we had managed to keep whole was that of peace. After centuries of killing each other savagely, we were exhausted. But we have forgotten all this, so these poor migrants are the perfect excuse to build old and new borders with barbed wire. They say that terrorists hide among the migrants, forgetting that these poor souls are themselves escaping from the terrorists'. Andrea Camilleri, L'altro capo del filo 1
Europe has been badly hit by several overlapping crises. This
paper explores how the said crises... more Europe has been badly hit by several overlapping crises. This paper explores how the said crises were triggered by, and in turn, aggravated, a structural crisis of European law. By doing so, the concrete implications of ‘austerity’ in constitutional terms are spelled out. Firstly, the crises have led to punctual decisions and structural reforms honouring European constitutional norms in the breach. Secondly, the government of the crises has facilitated the radicalisation of the ongoing mutation of European constitutional law, in particular changes to the structural and substantive constitutional law which have locked in a constitutional vision of sorts at odds with the regulatory ideal of the Social and Democratic Rechtsstaat. Thirdly, the very nature of European law, and in particular its condition of grammar of democratic law, has been endangered: European law is in the process of becoming an instrument of authoritarian governance.
This paper argues that to make sense of Brexit, we have to start by clarifying what was the actua... more This paper argues that to make sense of Brexit, we have to start by clarifying what was the actual content and relevance of the ‘Brexit deal’ agreed between the United Kingdom and the European Union in February 2016, and how that deal allowed the British Prime Minister to shape the terms of the debate. It must further be recognized that the causes of the leave victory are many and complex. It would be highly reductionistic – and precipitated – to conclude that leavers are rabid nationalists. This not only entails a confused and reductionist understanding of what nationalism is about, but also misunderstands both how the migration issue is shaping political debate in Britain and the rest of Europe, and the weight that the ongoing mutation of the EU is likely to have had in the outcome. For Brexit to be turned into a democratic shock, with the potential of leading to a fairer and more democratic EU and UK, it is necessary to avoid Brexit as usual and take Brexit as the incentive to redefine what European integration is and should be.
La Unión Europea atraviesa una crisis larga y profunda. Del calibre
de la misma dan sobrada cuen... more La Unión Europea atraviesa una crisis larga y profunda. Del calibre de la misma dan sobrada cuenta las tablas que acompañan a este trabajo. Hemos cruzado el umbral del noveno año de crisis económica. Sólo en 2014 la Eurozona en su conjunto superó el nivel de renta de 2008, algo que aún no han hecho varios países de la misma, incluido el nuestro. Pero no sólo el producto interior bruto se ha resentido; lo que es mucho más importante y relevante, la cohesión social y económica se ha deteriorado hasta niveles radicalmente inaceptables en Estados que se proclaman a sí mismos como sociales y democráticos de Derecho. Incluso en aquellos países en los que la crisis ha causado a primera vista menos estragos, la reciprocidad y la inclusión social han sido gravemente dañadas. Tras la retórica del segundo “milagro económico” alemán se pierde de vista no sólo que las tasas de cre- cimiento del país germano han sido pírricas, sino que no han servido para reducir los niveles de pobreza, que de hecho han aumentado.
Here the reader will find a reconstruction and description of the fundamental norms governing the... more Here the reader will find a reconstruction and description of the fundamental norms governing the single market, economic and monetary union and European citizenship
The chapter reconstructs and describes at length the law of the European Union on the single mark... more The chapter reconstructs and describes at length the law of the European Union on the single market, economic and monetary union and citizenship
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constitutional conflicts need to be considered in their wider context, in particular, taking into account the considerable differences in constitutional grammar, and in social and cultural orientation. Contrary to what is usually assumed, national constitutional norms and supranational European law are not dialects of one and the same “legal” tongue, but, on the contrary, they have come to realise and uphold very different fundamental principles. On such a basis, conflicts are likely to persist and grow in the coming future.
Palabras clave Unión Económica y Monetaria; identidad constitucional; control de compe-tencias de la Unión Europea; BCE; deuda pública.
ortionality to Union law, European courts have radically altere
d the substance of European law. This has been done both to supranational and national constitutional law and by means of
redefining its substantive content. European courts have through proportionality assigned an abstract and a concrete consti
tutional weight to the right to private property and to entrepreneurial freedom through the four economic freedoms and the principle of undistorted competition. That has placed outside the realm of the
constitutionally possible key public policies without which some of the fundamental collective goods at the core of the Social and Democratic
Rechtsstaat become extremely vulnerable. This paper shows how this accentuated bias of the European socio-economic constitution follows from the way in which European courts have defined
economic freedoms as the yardstick of European constitutionality. This entails the automatic assignment of the argumentative benefit to economic freedoms, the construction of all other constitutional goods in the semblance of economic freedoms,
and the use of asymmetric standards of evidence when having to justify the adequacy and necessity of economic freedoms and other constitutional goods.
paper explores how the said crises were triggered by, and in turn,
aggravated, a structural crisis of European law. By doing so, the concrete implications of ‘austerity’ in constitutional terms are
spelled out. Firstly, the crises have led to punctual decisions and structural reforms honouring European constitutional norms in the breach. Secondly, the government of the crises has facilitated the radicalisation of the ongoing mutation of European constitutional law, in particular changes to the structural and substantive
constitutional law which have locked in a constitutional vision of sorts at odds with the regulatory ideal of the Social and Democratic
Rechtsstaat. Thirdly, the very nature of European law, and in particular its condition of grammar of democratic law, has
been endangered: European law is in the process of becoming an instrument of authoritarian governance.
reductionistic – and precipitated – to conclude that leavers are rabid nationalists. This not only entails a confused and reductionist understanding of what nationalism is about, but also misunderstands both how the migration issue is shaping political debate in Britain and the rest of Europe, and the weight that the ongoing mutation of the EU is likely to have had in the outcome. For Brexit to be turned into a democratic shock, with the potential of leading to a fairer and more democratic EU and UK, it is necessary to avoid Brexit as usual and take Brexit as the incentive to redefine what European integration is and should be.
de la misma dan sobrada cuenta las tablas que acompañan a este trabajo.
Hemos cruzado el umbral del noveno año de crisis económica. Sólo en 2014 la Eurozona en su conjunto superó el nivel de renta de 2008, algo que aún no han hecho varios países de la misma, incluido el nuestro. Pero no sólo el producto interior bruto se ha resentido; lo que es mucho más importante y relevante, la cohesión social y económica se ha deteriorado hasta niveles radicalmente inaceptables en Estados que se proclaman a sí mismos como sociales y democráticos de Derecho. Incluso en aquellos países en los que la crisis ha causado a primera vista menos estragos, la reciprocidad y la inclusión social han sido gravemente dañadas. Tras la retórica del segundo “milagro económico” alemán se pierde de vista no sólo que las tasas de cre-
cimiento del país germano han sido pírricas, sino que no han servido para reducir los niveles de pobreza, que de hecho han aumentado.
constitutional conflicts need to be considered in their wider context, in particular, taking into account the considerable differences in constitutional grammar, and in social and cultural orientation. Contrary to what is usually assumed, national constitutional norms and supranational European law are not dialects of one and the same “legal” tongue, but, on the contrary, they have come to realise and uphold very different fundamental principles. On such a basis, conflicts are likely to persist and grow in the coming future.
Palabras clave Unión Económica y Monetaria; identidad constitucional; control de compe-tencias de la Unión Europea; BCE; deuda pública.
ortionality to Union law, European courts have radically altere
d the substance of European law. This has been done both to supranational and national constitutional law and by means of
redefining its substantive content. European courts have through proportionality assigned an abstract and a concrete consti
tutional weight to the right to private property and to entrepreneurial freedom through the four economic freedoms and the principle of undistorted competition. That has placed outside the realm of the
constitutionally possible key public policies without which some of the fundamental collective goods at the core of the Social and Democratic
Rechtsstaat become extremely vulnerable. This paper shows how this accentuated bias of the European socio-economic constitution follows from the way in which European courts have defined
economic freedoms as the yardstick of European constitutionality. This entails the automatic assignment of the argumentative benefit to economic freedoms, the construction of all other constitutional goods in the semblance of economic freedoms,
and the use of asymmetric standards of evidence when having to justify the adequacy and necessity of economic freedoms and other constitutional goods.
paper explores how the said crises were triggered by, and in turn,
aggravated, a structural crisis of European law. By doing so, the concrete implications of ‘austerity’ in constitutional terms are
spelled out. Firstly, the crises have led to punctual decisions and structural reforms honouring European constitutional norms in the breach. Secondly, the government of the crises has facilitated the radicalisation of the ongoing mutation of European constitutional law, in particular changes to the structural and substantive
constitutional law which have locked in a constitutional vision of sorts at odds with the regulatory ideal of the Social and Democratic
Rechtsstaat. Thirdly, the very nature of European law, and in particular its condition of grammar of democratic law, has
been endangered: European law is in the process of becoming an instrument of authoritarian governance.
reductionistic – and precipitated – to conclude that leavers are rabid nationalists. This not only entails a confused and reductionist understanding of what nationalism is about, but also misunderstands both how the migration issue is shaping political debate in Britain and the rest of Europe, and the weight that the ongoing mutation of the EU is likely to have had in the outcome. For Brexit to be turned into a democratic shock, with the potential of leading to a fairer and more democratic EU and UK, it is necessary to avoid Brexit as usual and take Brexit as the incentive to redefine what European integration is and should be.
de la misma dan sobrada cuenta las tablas que acompañan a este trabajo.
Hemos cruzado el umbral del noveno año de crisis económica. Sólo en 2014 la Eurozona en su conjunto superó el nivel de renta de 2008, algo que aún no han hecho varios países de la misma, incluido el nuestro. Pero no sólo el producto interior bruto se ha resentido; lo que es mucho más importante y relevante, la cohesión social y económica se ha deteriorado hasta niveles radicalmente inaceptables en Estados que se proclaman a sí mismos como sociales y democráticos de Derecho. Incluso en aquellos países en los que la crisis ha causado a primera vista menos estragos, la reciprocidad y la inclusión social han sido gravemente dañadas. Tras la retórica del segundo “milagro económico” alemán se pierde de vista no sólo que las tasas de cre-
cimiento del país germano han sido pírricas, sino que no han servido para reducir los niveles de pobreza, que de hecho han aumentado.