Das Recht im Prozess der Konstitutionalisierung Europas

This essay is a renewed effort to overcome the schisms between lawyers and political scientists in their conceptualisations of the European integration project. The first effort was my contribution Das Recht im Prozeá der Europischen Integration to Markus Jachtenfuchs/Beate Kohler-Koch (eds.), Europische Integration, Opladen: Leske + Budrich, 1996, 73-108. Its core message to the political scientists was that they should take the law (more) seriously. The key point of the present contribution is that they should understand the law as a moving target: Europe has been repeatedly juridified anew and differently. The law itself is exposed to debates and conflicts - and it is subject to change. It has to learn continuously. It goes through metamorphoses which affect its function in the building up of the European polity. This message is substantiated by analyses of three stages of the integration process. The first stage, covering the period from the establishment of the EEC up to the Single European Act, involves the building up of a supranational legal system which claimed primacy over national law, and, on this very ground, possessed constitutional significance which was, however, basically confined to an economic constitution. The second period covers the programme of the Delors Commission's White Paper on Completion of the Internal Market of 1985, which was rooted in the Single European Act of 1987, and was taken further by the Maastricht Treaty signed in 1991. Maastricht was a turning point in the constitutionalisation of Europe. The key question in practical politics for this stage was: can completion of the European internal market be only be achieved at the price of breaking down the various regulatory patterns that both continental and British welfarism had institutionalised? In legal terms: what limits do national constitutions set to the hollowing out of statehood through integration? What standards as to the rule of law and democracy does the institutionalisation of Europe have to meet? The third section addresses the present situation in which Europe is engaging in three projects at once: The writing down of a constitutional convention, the experimenting with new modes of governance - and enlargement. The first of these is the domain of the integration through law paradigm. In the second, a turn to economic rationality was launched. At present, the debate on governance is attracting enormous attention whereas constitution building has become a matter of high politics. At the same time, the law pursues its less visible and less spectacular path of constitutionalisation from below further. That incremental striving for a law-mediated legitimacy of European governance remains, so the essay concludes, an option that ought not to be given up lightly