By the end of 2020, we will have read and discussed all the texts devoted specifically to the notions of "national identity" and "constitutional identity". In 2021, we will move to our last topic, namely "EU identity" and we will try to determine whether the EU has its own constitution and whether it has a constitutional identity and/or a constitutional core. For our first session of 2021, please read the text by Daniel Sarmiento (who will also join us for the session, yey!) and by András Jakab (both texts are attached below). 

The session will be moderated by Štěpán Paulík (clearly a faithful padawan of Dimitri Kochenov) who has prepared a lot of interesting questions for our discussion:

Sarmiento

In general, I agree with Sarmiento that ‘an efficient critique should not focus on rejecting the existence of EU’s constitutional court, but on questioning the EU’s ability or wisdom to embrace it.‘ Majority of the following bullet points aim either in this direction or on the relationship between the core, EU’s identity and the national identity.

·       Does the EU/national identity (i.e. an existential trait, what are the features as a genetic code that grant the organization its raison d’etre) point at the EU/national constitutional core (i.e. the unchallengeable principles that form the very foundations of EU’s legal order)? What in your view is the relationship between these four concepts?

·       Sarmiento argues that the EU’s constitutional core is channeled through EU citizenship, which holds three normative ideas on which the EU is based: democracy, rights, and solidarity. Do you agree with that? Kochenov offers a different view: “The EU’s very self-definition is not about human rights, the Rule of Law or democracy. EU law functions differently: there is a whole other set of principles which actually matter and are held dear: supremacy, direct effect and autonomy are the key trio coming to mind.” Do you agree with Kochenov on this? If he is right, what are the consequences for the constitutional core of the EU?

·       Sarmiento comes up with three normative ideas that explain the features of EU’s identity: Democracy, Rights, and Solidarity. also holds that ‘the EU internal organization of powers is based on the principles (…) of the rule of law”.” Is this conclusion in line with the case-law of the CJEU on EU acceding to the ECHR, in which the CJEU denied any possibility of external review of EU law? Wouldn’t Kochenov’s description in this case be more accurate? Isn’t Kochenov’s description even more pressing when accept the notion of identity as an existential trait since the ‘procedural’ principles are far more ingrained in the genetic code of the EU than EU citizenship?

• How does Sarmiento understand the “substance of the rights” attached to the EU citizenship (pg. 187 and discussed further on pg. 190)? What are the implications of his understanding?
• Isn’t the link between substance of the rights attached to the EU citizenship to the three normative ideals (especially rights) a bit of a stretch? And if we were to only take into consideration the actual substance of the rights attached to the EU citizenship, wouldn’t the three normative ideals be too thin (as in citizenship does not cover organizational aspects of democracy such as the institutional design or its procedural principles, it does not cover more systemic aspects of the rights normative idea (rule of law)?

·       Is the following definition of EU constitutionalism flowing from the discussion surrounding the rule-of-law conditionality mechanism akin to the normative ideal of solidarity: “The main problem with this dominant legal discourse is its dependence on a category mistake. It confuses what we can call the ‘constraint function’ of constitutionalism with the actual ‘constitution’ of power in the most robust sense. All law constrains, and the mere fact that EU law has constrained the prerogatives of its member states does not mean that EU law is itself constitutional, even as it aims to ensure fundamental rights and the separation of powers.” “The ‘constitution’ of power, in the most robust sense, entails mechanisms to extract and redirect (‘mobilize’) human and fiscal resources in a legitimate and compulsory fashion. (…) If this gambit succeeds, the EU will have successfully tied the mobilization of fiscal resources at a genuinely ‘constitutional’ scale to the enforcement of core values on behalf of the polity as a whole. In doing so, it will take significant steps to transcend the fragility of the ‘as if’ constitutionalism that has characterized the integration project to date.” (https://verfassungsblog.de/rule-of-law-conditionality-and-resource-mobilization-the-foundations-of-a-genuinely-constitutional-eu/)

Jakab

According to Jakab, constitutions are generally expected to do two things:

• to be a means of legal self-restraint on the political power (as expressed by the protection of fundamental rights and the idea of the separation of powers); and
  • Jakab discusses the means to enforce a constitution as a way to enforce legal restraint on political power.
  • In terms of constitutional review, he distinguishes two roles constitutional judges can play: If judges perceive their roles only as agents of the constitution-maker, then their task is just to enforce the choices of the constitution-makers over legislative majorities. If judges, however, see themselves as trustees of the political system, then their task is to ensure that the legislative process produces the ‘best’ policy outcomes. The latter model is somewhat nearer to reality, but it is uncomfortable because it does not allow judges to hide behind the rhetoric of the agent model and it requires them to give a more complete justification (including social consequences). Does this distinction actually hold? What role do the Czech constitutional judges play?
  • Quite intriguingly, he proposes that referenda in Switzerland serve as a limit to federal legislation, which corresponds to the logic of constitutional democracy, according to which if a state organ is not controlled by one of the possible supervisory organs (in this case that would be the Bundesgericht of Switzerland), there should be some other kind of control. Do they actually play this role?
  • The author distinguishes between material and formal conception of constitution. He recognizes four conceptualizations of material constitution. Would you be able to link each conceptualization to a concept already know to you from the Czech legal constitutional law? Do you agree with his conclusion that “we should restrict the use of the concept of the constitution to the formal constitution”?
  • Does the following statement in your view hold empirically: ‘A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government’? What are the consequences if not?
  • Jakab introduces Buchanan’s rules of rationality: ‘Legal self-restraint is important not only in order to avoid a dictatorship, but also to force decision-makers to consider certain aspects (interdependencies and externalities) which they otherwise would not.’ N. Barber suggests that the purpose of some concepts of constitutionalism (i.e. separation of power) is to increase efficiency rather than to restrain a government. Do you agree with this conclusion? Wouldn’t it clarify some of the conceptual issues legal doctrine faces when grasping the concepts of constitution(alism)?
• to be symbols that bind the community together.
  • Read the preamble of the Czech constitution. Do you think that it allows for ‘an emotional identification on the part of as many Czech citizens as possible’? Does it reflect our identity in order to reflect ‘symbolic unity and give an integrating narrative to the political unity’?
  • A definition of a constitution follows from these two functions: one or several legal documents which are more difficult to amend than ‘ordinary’ laws, and on which one can measure the validity of the ‘ordinary’ laws (pg. 24).
• How would you rate the Czech constitution in terms of the three criteria required for a constitution to be stable and, consequently, to be able to limit politics (flexibility, integrating character, sufficient detail)? Jakab describes several methods for a constitution to remain stable. In what ways does the Czech constitutional system achieve constitutional stability and what are their pros and cons?
• He then argues that the founding Treaties can be qualified as the Constitution of the European Union but although the Treaties serve the first function well enough, the second function is served deficiently. According to him, legal scholars can play a role in developing the symbolic function of the Treaties. Do you agree with him given the reach of legal scholarship? Does the legal scholarship actually “help in strengthening the EU in public discourse” and “help to stop constitutional changes in Member States, if these changes contradict the principles of the Constitution of the EU”?
• Isn’t the following definition of EU constitutionalism flowing from the discussion surrounding the rule-of-law conditionality mechanism more fitting to the EU level: “The main problem with this dominant legal discourse is its dependence on a category mistake. It confuses what we can call the ‘constraint function’ of constitutionalism with the actual ‘constitution’ of power in the most robust sense. All law constrains, and the mere fact that EU law has constrained the prerogatives of its member states does not mean that EU law is itself constitutional, even as it aims to ensure fundamental rights and the separation of powers.” “The ‘constitution’ of power, in the most robust sense, entails mechanisms to extract and redirect (‘mobilize’) human and fiscal resources in a legitimate and compulsory fashion. (…) If this gambit succeeds, the EU will have successfully tied the mobilization of fiscal resources at a genuinely ‘constitutional’ scale to the enforcement of core values on behalf of the polity as a whole. In doing so, it will take significant steps to transcend the fragility of the ‘as if’ constitutionalism that has characterized the integration project to date.” (https://verfassungsblog.de/rule-of-law-conditionality-and-resource-mobilization-the-foundations-of-a-genuinely-constitutional-eu/)
• Can we find Jakab’s typical content of constitutions in the Treaties? Or is the EU build on other principles as Kochenov suggests: “The EU’s very self-definition is not about human rights, the Rule of Law or democracy. EU law functions differently: there is a whole other set of principles which actually matter and are held dear: supremacy, direct effect and autonomy are the key trio coming to mind.” Do you agree with Kochenov on this? If he is right, what are the consequences for the constitutionality of the EU?

Assigned reading:

Further reading: Armin Cuyvers' PhD thesis defended in Leiden, available here.