A. von Bogdandy - J. Bast (eds.), Principles of European Constitutional law, Hart Publisher, Oxford and Portland, Oregon, 2006.
| Autor | Giuseppe Martinico |
| Páginas | 249-255 |
Giuseppe Martinico. Lecturer in Law, University of Pisa/STALS Senior Assistant Editor; Visiting Research Fellow, King’s College, London, martinico@sssup.it.
Page 249
The book I am going to review tackles the emerging constitutional dimension at the EU level.
It aims at providing a sort of overview of the German scholarship in this field and it is interesting to note how, from the first lines of the volume on, the editors stress the real intention of the work: “While politics wrestles with the Constitutional Treaty [and one could say the same with regard to the Reform Treaty now] as the founding legal document de lege ferenda, this volume presents a European Constitutional law - not as a mere project but as binding valid law, as lex lata”1.
The basic assumption of the work is thus that there exist a set of fundamental principles which may be called Constitutional law of the EU, since they found a new legal order and are the basis for it. The volume is composed of five parts parts.
Part I is devoted to the definition of the “Field of European Constitutional Law”. It opens with a long essay by von Bogdandy, who tries to stress the insufficiency of an approach limiting European Constitutional Law to a “body of law that can only be changed under qualified requirements - above all the procedures according to Article 48 EU[...] This learned but traditional portrayal of primary Union law neglects, however, important issues which, at least according to the German tradition, are crucial to the science of constitutional law”2.
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Having said that, the author decides to point out the importance of European Constitutional Law understood as “a doctrine of principles” with many fundamental functions in the life of a legal order. Among the others, von Bogdandy recalls how: “A doctrine of principles plays a role in the creation of an emerging European identity. A European identity requires a common understanding of the polity by the citizens, something for which constitutional principles could be an important vehicle”3. The essays goes on dealing with the analysis of the founding principles of supranational dimension, although the author admits that “European constitutional law is closely intertwined with the national constitutions, forming the ‘European constitutional space’”4.
The second essay, by Oeter, insists on the understanding of the EU as a federal polity. First, it provides an overview of the several “theoretical approaches and models using federalist concepts as a tool of conceptualising the European Union”5; it then moves to a costs and benefit analysis of these federal analogies.
The chapter by Grabenwarter6 provides a bottom-up perspective of the process of constitutionalization. It deals with the question of the relationship of the EU law primacy over national law, with national constitutional provisions devoted to the EU law and finally with the comparison of the similarities and differences in the national strategies of adaptation to EU law.
In the chapter by Uerpmann-Wittzack, the Author considers the “constitutional role of multilateral treaty systems”, insisting on what he calls international supplementary constitutions (starting from the notion of “Völkerrechtliche Nebenverfassungen”7). The basic idea is that sometimes national constitutions may contain gaps “which are filled by referring to international law”8; from this standpoint, the Author analyses the importance of international documents such as the ECHR and the WTO systems treaties.
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The last contribution of the first part of the volume, by Möllers, attempts to tackle the ambiguity of such terms as constitution, constituent power and constitutionalization. The author begins his reflection drawing a distinction between the idea of Constitution as a Politicisation of Law and the that of Constitution as Jurifidication of Politics9. He then goes on with an analysis of the complicated relationship between State, Nation and Constitution. He devotes his last pages to European Constitutional Law as a peculiar field of legal research and to the Constitutional Treaty as a “semantic constitution” to indicate a sort of masque-constitution “behind which a completely different political system is hidden”10, thus adapting a concept devised by Karl Loewenstein11 to the EU context.
Part II of the book focuses on the “Institutional issues” and opens with a contribution by Dann on the political institutions of the EU. In order to provide a critical overview of the institutional setting, the author uses the notion of “executive federalism”, by which he means “a system of interwoven competences... complemented by the institution of a Council which is composed of the executives of the Member States...through this organ the Member States are directly involved in the making of the law, which they have to execute”12.
In the next chapter, Franz Mayer13 draws a detailed picture of the relationship between Courts in the multilevel legal order. Paying attention to both the ECJ and the highest national courts, he distinguishes between a procedural perspective (dwelling on the duty to make preliminary references under article 234 ECT) and a substantive perspective. In the last part of his fascinating chapter, after giving a definition of multilevel constitutionalism, Mayer adopts what he calls a theoretical perspective, by attempting to contextualize the role of the Court in the multilevel system.
In their chapter “The Vertical Order of Competences”, von Bogdandy and Bast show how one can infer a possible list of competences by looking at the goals of...
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