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Massimo Fichera

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Massimo Fichera

The chapter argues that EU constitutionalism is driven by the meta-rationale of security. It begins by illustrating the main paradigms of European integration, taking a cursory look at other disciplines, including international relations and political theory. While the traditional narrative depicts the liberal project of European integration as the gradual and progressive development from an economic community, in which fundamental rights are absent, to a fully-fledged organization or polity, the argument is here instead that security and fundamental rights are pivotal self-justifying discourses of power within the EU, operating in terms of empowerment both of the EU citizen and of the EU as a collective entity. Six dimensions of the security of the European project are distinguished: spatial, temporal, popular, ontological, epistemic, semantic or reflexive. Finally, the chapter points out that security and crisis are intertwined and analyzing them together allows to unravel the contradictions and ambiguities of the European project.

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Massimo Fichera

This chapter relies on the notion of ‘discursive constituent power’. The ambiguity of EU liberal constitutionalism resides in the fact that it has safeguarded the security of the European project by disguising constituent power—the truly political dimension of the process of integration—in the form of the security and fundamental rights discourses. These discourses have contributed to constructing two ideas of ‘people-as-constituent-power’. The first idea is that of ‘mobile people’, a category of people that are supposed to benefit from EU free movement rights. The second idea is that of ‘peoples’ in the plural, conceived as States and citizens at the same time. The security and fundamental rights discourses appear as universalistic and all-embracing, whereas they are in reality always partial, addressed to particular categories of people in particular contexts. Moreover, the building up of the area of freedom, security and justice (AFSJ) is representative of an advanced, more conflictual stage of integration. Although the CJEU tends to protect fundamental rights only to the extent their recognition is instrumental to ensuring the primacy, uniformity and effectiveness of EU law (self-referential security), it is important to interpret primacy, uniformity and effectiveness in relative, not absolute terms.

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Massimo Fichera

After outlining the general features of proportionality, the chapter illustrates the main concerns associated with proportionality in the internal market as regards (a) the risk of affecting the delicate structure of domestic constitutional systems through the ‘restrictive effect on trade’ test, (b) the use of the fundamental rights and security discourses to promote the expansion of the CJEU’s competences vis-á-vis both the EU institution and the national level as well as market integration, and (c) the CJEU’s attempt to accommodate (again in the name of market integration) the diversity of national legal systems through a version of the margin of appreciation test in the context of the free movement of persons . The internal market thus witnesses a struggle between the push towards greater integration and the resistance of Member States, as well as between the ‘market integration meta-rationale’ and the social constitution. On a similar wavelength, in the AFSJ proportionality serves to justify the increasingly intrusive powers of the EU. A comparison between internal market rationality and AFSJ rationality allows us to point out the flaws of balancing as an element of the test of proportionality, when applied at the EU level, especially at a time of highly controversial institutional developments.

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Massimo Fichera

This chapter explores five out of six dimensions of security -spatial, temporal, ontological, popular and epistemic. The risk in the process of European integration is that the circularity of security and fundamental rights discourses—the self-referentiality of the meta-rationale of security—leads to a blind alley, and potential self-destruction. The multiple crises of the recent years have showed that this is a concrete possibility. The chapter distinguishes between the refugee crisis, the rule of law crisis, the financial and economic crisis, the constitutional identity crisis, the boundaries crisis and the Brexit crisis. For the first time in the history of the European liberal project, all dimensions of security are being challenged simultaneously by six types of crisis. Paradoxes and tensions certainly emerge from the common effort to construe an internal market within a diversified multi-layered transnational society, while at the same time preventing its fragmentation and dissolution. Yet, the moment has come to face political conflict and address it directly, rather than conceal it behind a veil of neutrality. Being ready for actual confrontation means dismissing the straitjacket imposed by the European liberal project and moving beyond the current state of affairs. As a result, the constellation of nation States should not be sidelined too easily and, at the same time, the needs and claims of the local, sub-national level should be considered more carefully.

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Massimo Fichera

The final dimension of security—reflexive or semantic—is examined in the last chapter. What does it mean to be secure for the EU polity? And why should we view the EU not only as a legal system/legal order, but also as a transnational polity? The main argument is that security and crisis should be viewed as strictly interrelated and that the multiple crises should be examined together in order to explain why and how European integration should be pursued. In order to fully understand the nature of the EU's constitutional claims, one should not look at free movement and competition law. Instead, the real focus of EU constitutionalism should be ‘Europe as an AFSJ’ as an example of combination of liberal and republican elements as well as of the EU's coming to terms with highly conflictual areas of sovereignty. From this viewpoint, communal constitutionalism attempts to convert the abstract language of threat, which is intimately connected with the abstract language of universalism, into concrete measures adopted at the local level.

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Massimo Fichera

In this insightful book, Massimo Fichera provides an original account of European integration as a process. He argues that European constitutionalism has been informed from its earliest stages by a meta-rationale, which is expressed by security and fundamental rights as discourses of power. Employing this descriptive and normative conceptual framework to analyse the development of the EU as a polity, chapters cover significant recent events such as the Eurozone crisis, the refugee crisis, the rule of law crisis, Brexit and the constitutional identity crisis.