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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 3: The Trajectory of EU Constitutional Law

Dagmar Schiek


I. INTRODUCTION This chapter will retrace the trajectory of EU constitutional law as it has developed through case law and Treaty reforms, using the chart in Figure 2.1. As EU constitutional law emerged incrementally rather than in one constitutional moment, it can best be understood in its historical development.1 For the purposes of this book, it is important to understand how layer upon layer of the different phases of European integration have added to liberal and socially embedded constitutionalism EU style – especially up until 2004, that magical turning point for rights protection and democratic life respectively as a consequence of Eastern Enlargement.2 Thus, the focus will be on developments up until that year, including changes made by the Treaty of Lisbon except for the restatements of the EU’s value and programmatic base, which are the subject of Chapter 5. The initial purpose of the EEC was economic integration, and EU constitutional law first developed an ‘economic constitution’.3 A ‘political constitution’,4 institutionalising democracy under liberal paradigms, only emerged later, through a series of Treaty reforms from 1987 up to the Treaty of Lisbon in 2009.5 It was accompanied by the ‘civic constitution’, offering judicial protection for the economic constitution, but also citizens’ and human rights. Whether a ‘social constitution’ ever emerged is contested: while some view this as the neglected aspect of European constitutionalism,6 others have maintained that democracy and citizenship have developed as a ‘converse inverted pyramid’, in that social rights (and implicitly social constitutionalism) emerged even before...

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