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Economic and Social Integration

The Challenge for EU Constitutional Law

Dagmar Schiek

The book draws on a unique content and discourse analysis of all Grand Chamber decisions on substantive EU law since May 2004. It finds the EU’s ‘judicial constitution’ to be more nuanced and more uniform than expected. While the Court of Justice enforces the constitution of integration, it favours economic freedoms under mainly liberal paradigms, but socially embeds constitutionalism in citizenship cases. The ‘judicial constitution’ contrasts with EU Treaties after the Treaty of Lisbon in that their new value base enhances European social integration. However, the Treaties too seem contradictory in that they do not expand the EU’s competence regime accordingly. In the light of these contradictions, Dagmar Schiek proposes a ‘constitution of social governance’: the Court and EU institutions should encourage steps towards social integration at EU level to be taken by transnational societal actors, rather than condemn their relevant activity.
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Chapter 2: EU Constitutional Law

Dagmar Schiek


I. INTRODUCTION Before considering whether and how EU constitutional law addresses any challenges posed by economic and social integration, it will be necessary to clarify the notion of EU constitutional law. The EU has come a long way from constitutionalisation through case law by its Court of Justice, and towards establishing constitutionalism in a multilevel polity. With the rejection of the Constitutional Treaty, any capital letter ‘EU Constitution’ has been committed to history for the time being.1 Against this background, the notion of ‘constitutional law’ has been chosen deliberately: while it abandons the concept of a constitution, it maintains that there can still be constitutional law. In developing a societal notion of EU constitutional law,2 this chapter first considers national constitutions and constitutional law beyond the state, contrasting merely liberal traditions of constitutionalism with moves towards socially embedded constitutionalism and relates these types of constitutionalism to social and economic integration. It will then outline the elements of EU constitutional law. This will be the basis for identifying parameters suitable to gauge whether and how EU constitutional law meets the challenges posed by economic and social integration, especially after Eastern Enlargement and under the new constitutional framework provided by the Treaty of Lisbon. II. NATIONAL CONSTITUTIONS European constitutions were offshoots of modernity, the Enlightenment and the subsequent establishment of nation states,3 emerging either from a 1 For an article regretting this see Tsebelis, 2008; for a more recent overview see Menéndez, 2010. 2 Usually, European and global constitutionalism...

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