Constitutionalism of inverse hierarchy: the case of the European Union

Abstract:

On 20 June 2003, the European Convention presented the European Council of Thessaloniki with a Draft Treaty establishing a Constitution for Europe. This paper proposes that this draft treaty reflects the specific, if not traditional, constitutionalism has evolved over the half-century course of European integration, in particular since 1992, when the Treaty on European Union was concluded at Maastricht. In this sense, the Union's constitutionalism is stable even if its positive constitutional manifestations are not. The specific constitutionalism of the EU is a three-level system of government that works through an inverse hierarchy. The constitutional nation State is placed both at the lowest and at the highest level of this system, with the Union/Communities taking the middle level. In the first process, the Union forms a hierarchical centre with the Member States acting at the "lowest level" to the extent the Community enacts policies in areas such as the internal market and the Member States carry them out. But the periphery also inverts this hierarchy with the Member States acting at the "highest level" to the extent that they inspire and determine the action of the centre. At this level of the hierarchy, the Member States act through the heads of States and governments assembled in the European Council, the national constitutional courts and national parliaments in their treaty-making capacity, while at the "lowest" level, they act through their executive organs and their courts. This interaction between centre and periphery is the precondition for the working of the institutions of democracy, the Rule of law, and individual rights within the Union. The article analyses these institutions of constitutionalism as they operate in an inverse hierarchy, taking into account, when appropriate, the Draft Constitutional Treaty.