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Europe’s Economic Constitution in Crisis and the Emergence of a new Constitutional Constellation
(2014)
The European Union rides through troubled waters. Its original reliance on law as the object and agent of the integration project and on the “economic constitution,” which the Economic and Monetary Union (EMU)—as accomplished by the Treaty of Maastricht—expected to complete, have proven unsustainable. Following the financial and sovereign debt crises, individuals perceive the EMU, with its commitments to price stability and monetary politics, as a failed construction precisely because of its reliance on inflexible rules. The European crisis management seeks to compensate for these failures by means of regulatory machinery which disregards the European order of competences, takes power from national institutions, and burdens—in particular—Southern Europe with austerity measures; it establishes pan-European commitments to budgetary discipline and macroeconomic balancing. This abolishes the ideal of a legal ordering of the European economy, while the economic and social prospects of these efforts appear gloomy and the Union’s political legitimacy becomes precarious. A fictitious debate between Carl Schmitt and Jürgen Habermas addresses the present critical constellation, where a number of Schmittian notions seem alarmingly realistic. This essay pleads for a more modest Europe committing itself to “unity in diversity,” the motto of the ill-fated Constitutional Treaty of 2003.
Das Buch untersucht vergleichend für den europäischen Binnenmarkt und den internationalen Handel die Zusammenhänge zwischen der Liberalisierung des Handels und seiner Regulierung zum Zwecke des Arbeits-, Gesundheits- und Umweltschutzes an den Beispielen Produkt- und Lebensmittelsicherheit in der EU, Telekommunikations- und Gesundheitsdienstleistungen, Verminderung von CO2-Emissionen von Pkw, Arbeits- und Sozialstandards im internationalen Handel, private Standards zum Schutz öffentlicher Güter im Welthandel. Als normativer Maßstab für die empirische Politikwissenschaft dient das Konzept der „Sozialregulierungsfähigkeit“. Für die rechtliche Kontrolle der externen Effekte staatlichen Handelns, der transnationalen Verwaltungskooperationen und der Aufgabenverlagerungen auf private Akteure wird das Konzept eines dreidimensionalen Kollisionsrechts entwickelt.
Mit Beiträgen von:
Olga Batura, Henning Deters, Josef Falke, Carola Glinski, Thorsten Hüller, Christian Joerges und Markus Krajewski
The Laval Quartet rulings of the CJEU have become an indispensable reference in every discussion on the social dimension of the European integration process over the past decade. Becoming a synonym for the subordination of labour rights and social goals to market freedoms, the rulings have raised different questions, the most pressing one being about the relationship between the economic and the social sphere of the EU as an emerging polity. The dissertation enquires into the question to what extent that relationship has been reconfigured in the aftermath of the Quartet rulings.
Starting with the rulings themselves through a law in context approach, the dissertation studied a segment of the aftermath in the period following the rulings (2008-2019). While the aftermath has played out at various levels of EU’s multi-level governance structure, this study focuses on the supranational macro-level, examining the development of the subsequent CJEU case law and the EU-level political responses.
The thesis makes the argument that due to the countermovement that the rulings have quickly triggered at EU and Member State level, a political struggle over the social in the EU has emerged, demonstrating the difficulty of conceiving of the EU as a common social space in conditions of diversity, a strong core-periphery division and governance structures dominated by market rationality.
Particularly the developments in the field of posting of workers, starting with the Quartet and ending with the Revised Posted Workers Directive, reveal three important insights for the integration process more broadly. First, the existing material inequality and differences in economic development among Member States in enlarged EU, of which the Quartet was an early symptom, have buttressed the European regulatory space as a space of conflict between the core and the peripheries. Second, resolving core-periphery conflicts has distributional consequences, which are particularly visible in the context of labour and social questions. Resolving such conflicts requires an EU common conception of (social) justice, which appears particularly difficult to conceive of in the core-periphery constellation. Third, progressive social solutions mostly remain foreclosed, as in both cases, at the Court as well as in the political realm, these are mostly contested within a framework dominated by market rationality.
This article pursues re-constructive and explanatory objectives which are embedded in a theoretical and normative agenda. The introduction specifies its beginnings including biographical notes. The following conceptual history of the law of the integration project distinguishes three stages in which three distinct varieties of economic constitutionalism have been pursued, which all remained defective when measured against the commitments to democracy, social justice, and the rule of law. These defects deepened in the managerial responses to the financial crisis of 2008. Throughout the article, a counter vision of conflicts-law constitutionalism is developed step by step. The final section of the article seeks a theoretical backing for this counter vision in Lisa Herzog’s theory of ‘democratic institutionalism’. The epilogue sketches out how the project will continue.
Das europäische Ausschusswesen gilt vielen als eine der großen Untiefen der europäischen Politik, die gleichzeitig eine hohe Aussagekraft für die Funktionsweise des Gesamtsystems hat. Joseph Weiler beschrieb es Ende der neunziger Jahre als „a new sub-atomic particle, a neutrino or a quark, affecting the entirety of molecular physics which requires an account of both the phenomenon itself and the way it impacts upon the rest of nuclear understanding” (Weiler 1999, S. 340). Und doch meinten die Autoren dieses Textes vor nunmehr über fünfzehn Jahre genau hier normative Gehalte, gar den Kern der Legitimität europäischen Regierens, sehen zu können (Joerges und Neyer 1997a, 1997b).
In this article, the controversy between the European Court of Justice and the German Federal Constitutional Court over the Outright Monetary Transactions (OMT) Programme remains in the background. Rather than summarising and evaluating all this, the Author focuses his attention on a defence of the message in the title. Firstly, he starts with the ruling of the German Court of January 2014, which, as is well known, is the “first reference ever”. In this the Author focuses his attention on the two dissenting opinions by judges Lübbe-Wolff and Gerhardt. Then, the analysis focuses mainly on to the exercise of discretion by the ECB and the role of the judiciary. Thereafter, the Author examines the responses to these developments in various branches of European studies and concludes with an explanation of title.
As the Second World War was drawing to a close in 1944, two great works of political economy were published. One of them was Friedrich August von Hayek’s The Road to Serfdom, inspiring the defenders of free market movements ever since and up to the present. The other was Karl Polanyi’s The Great Transformation. This essay will focus on Polanyi but also pay tribute to Hayek. Contrasting the two helps to understand both of them better. Of the two, Hayek, the Nobel prize winner, is of course more widely known and by far more influential. But Polanyi’s work, too, has achieved and has been attracting as of recently such attention that one of the Directors of the Max Planck Institute for the Study of Societies in Cologne proclaimed that ‘we are all Polanyian now’, not only in economic sociology, but also in related disciplines, including, of course, political economy and political theory. A plethora of aspects of The Great Transformation are very widely discussed. This essay will be concerned with the not-so-well explored importance of Polanyi’s work for European Law and legal scholarship in general, including his theorems on the ‘embedded economy’, his conceptualisation of labour as a ‘fictitious commodity’ as well as the notion of counter-movements. It will then juxtapose Polanyi’s expectation of a new international order with the development of the European integration project and sketch out the contours of the democracy-enhancing conflicts law and its affinities with Polanyian core normative principles.
European Studies used to be dominated by legal and political science approaches which hailed the progress of European integration and its reliance on law. The recent set of crises that struck the EU have highlighted fundamental problems in the ways and means by which European integration unfolds. The quasi-authoritarian emergency politics deployed in the euro crisis is a radical expression of the fading prevalence of democratic processes to accommodate economic and social diversity in the Union. As we argue in this paper, however, the mainstreams in both disciplines retain a largely affirmative and apologetic stance on the EU's post-democratic and extra-constitutional development. While political science contributions mostly content themselves with a revival of conventional integration theories and thus turn a blind eye to normatively critical aspects of European crisis governance, legal scholarship is in short supply of normatively convincing theoretical paradigms and thus aligns itself with the functionalist reasoning of the EU's Court of Justice. Yet, we also identify critical peripheries in both disciplines which intersect in their critical appraisal of the authoritarian tendencies that inhere in the crisis-ridden state of European integration. Their results curb the prevailing optimism and underline that the need for fundamental reorientations in both the theory and practice of European integration has become irrefutable.