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Transnational Constitutionalism is a sociological given and a legal challenge. We observe the emergence of ever more legally-framed transnational arrangements with ever more power and impact. Does this kind of rule ‘deserve recognition’? Is it at all conceivable that the proprium of law can be defended against the rise of its informal competitors? This essay opts for a third way which neither listens to the siren songs on law beyond the state nor to the defences of nation-state constitutionalism as the monopolist of legitimate rule. The alternative submitted suggests that transnational legal ordering of the EU should build upon its re-conceptualisation as a ‘three-dimensional conflicts-law’ with a democracy-enhancing potential. This re-construction operationalises the ‘united in diversity’ motto of the Draft Constitutional Treaty of 2004. It preserves essential accomplishments of Europe’s constitutional democracies. It provides for co-operative problem-solving of transnational regulatory tasks, and it retains supervisory powers over national and transnational arrangements of private governance.
Unity in Diversity” was the fortunate motto of the otherwise unfortunate Draft Constitutional Treaty. The motto did not make it in to the Treaty of Lisbon. It deserves to be kept alive in a new constitutional perspective, namely the re-conceptualisation of European law as new type of conflicts law. The new type of conflicts law which the paper advocates is not concerned with selecting the proper legal system in cases with connections to various jurisdictions. It is instead meant to respond to the increasing interdependence of formerly more autonomous legal orders and to the democracy failure of constitutional states which result from the external effects of their laws and legal decisions on non-nationals. European has many means to compensate these shortcomings. It can derive its legitimacy from that compensatory potential without developing federal aspirations. The paper illustrates this approach with the help of a topical example, namely the conflict between European economic freedoms and national industrial relations (collective labour)law. The recent jurisprudence of the ECJ in Viking, Laval, and Rüffert in which the Court established the supremacy of the freedoms over national labour law is criticised as a counterproductive deepening of Europe's constitutional asymmetry and its social deficit. The introductory and the concluding sections generalise the perspectives of the conflicts-law approach. The introductory section takes issue with max Weber’s national state. The concluding section suggests a three-dimensional differentiation of the approach which seeks to respond to the need for transnational regulation and governance.
Im Zentrum des Bandes stehen Austauschprozesse, Vermischungen sowie Konflikte zwischen verschiedenen Rechtskulturen. Dabei geht es um den Transfer von Rechtsordnungen, um lokale autonome Ordnungen in Bezug auf Ordnungen mit generellem Geltungsanspruch, um neue Formen der Hybridisierung in der wechselseitigen Rezeption von Rechtsgrundsätzen oder um die Herausbildung transnationaler Rechtsordnungen und die Frage, ob diese sich als Prozesse der Konstitutionalisierung, der Durchsetzung universaler Rechtsprinzipien oder des Managements von Pluralität deuten lassen.
This discussion of the ECJ in the context of a project on political representation in the EU responds to the Court’s changing functions in the integration process and also to the critique which the exercise of this function has provoked in recent years after the Court objected to constitutional provisions and legislation of constitutional status in particular in the sphere of labour law and social protection. The ECJ has been accused of partisanship with a neoliberal-monetarist agenda. These debates are bound to extend to the new functions which were assigned to the CJEU in the supervision of the budgetary discipline of Member States in the Euro zone. The problems that might arise in such a case have been foreshadowed by the recent jurisprudence on the legality of the European practices of crisis management. The judgments of the German Bundesverfassungsgericht of 12 September 1212 on the ESM Treaty and the Fiscal Compact and the CJEU Judgment of 27 November 2012 in the Pringle case are of exemplary importance. They document the difficulties both courts have with the defense of the autonomy of law against apparent functional necessities and concurring attitudes in the readiness to accept the primacy of the political.