Building firewalls or floodgates? Constitutional design for the European Union

Abstract:

This article draws on the experience of comparative federalism to assess the efficacy of institutional safeguards against authority migration contained in the draft Constitutional Treaty. It evaluates the impact of the methods of authority allocation, judicial safeguards and ex ante structural safeguards in five federations. It argues that the approach opted for in the Treaty would strengthen structural safeguards through reforming the subsidiarity procedure, but the proposed method of power allocation provides opportunities for authority migration that the courts would be unlikely to remedy. Future reform efforts should bear this in mind.