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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 4: The EU’s Judicial Constitution after Enlargement

Dagmar Schiek


I. INTRODUCTION AND METHODOLOGICAL APPROACH This chapter considers the judicial constitution, focusing on its specification by the Court’s Grand Chamber since the EU’s Eastern Enlargement from 2004.1 The analysis starts from the results of its rulings, gauging how many of them support or inhibit rights and democracy as demanded by liberal constitutionalism and socially embedded constitutionalism respectively, proceeding to a content analysis and tracing any doctrinal (in)consistency that may expose a bias towards one or other form of constitutionalism and thus a positioning between social and economic integration. Case law is considered as a mirror of constitutional conflict. As processes of constitutionalisation and even ordinary legislation become more and more complex and long-winded, the resulting norms (e.g. in the EU Treaties) must remain sufficiently open to allow adaptation by interpretation.2 Such adaptation is needed increasingly due to rapidly changing global socio-economic realities and ever-shifting spheres of conflict creating new challenges for the law’s task, which is to provide normative order. Interpreting is the task of an arbiter, as distinct from the norm-creator – this is a task of the judiciary (among others). Within the European Union, it is up to the EU courts and national courts to specify the meaning of EU constitutional law. Such specifications can never be exclusively dictated by the norms themselves. Accordingly, judicial interpretation at any level always entails rule-making, partly by specification, partly by filling lacunae. This activity is of essentially political character. Judicial interpretation also has to follow the rules of legal discourse if...

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