Constitutionalism and dissonances : has Europe paid off its debt to functionalism?

The negative outcomes of the French and Dutch referenda on the Constitutional Treaty have opened a period of profound constitutional disenchantment in relation to the EU. This impression seems confirmed by the recent Presidency Conclusions of the European Council which, although salvaging many important solutions contained in the Constitutional Treaty, explicitly sanction that “the constitutional concept … is abandoned”. In the light of this context, what role could the constitutional scholarship play? How to make sense of a polity in which the claims of constitutionalism as form of power are politically unappealing though legally plausible? This article tries to respond to these questions by reaffirming functionalism as a valid analytical and normative perspective in facing the current constitutional reality of European integration. The analytical value associated with functionalism is evidenced by testing against the current context of the EU legal framework the accounts for EU constitutionalism which postulate functional equivalence between the EU and the member states. The normative potential of functionalism, then, is discussed by arguing that there may be a value worth preserving in a degree of functional discrepancy between the EU and state constitutionalism and, notably, that the transformative and civilizing dividend inherent in functionalism could still be exploited at least in certain policy-areas. Finally, the article suggests that the difficulties in accounting for EU constitutionalism in the light of state-centered constitutional theory could be regarded as symptoms of European integration marking a moment in the theoretical evolution of constitutionalism.