The EU constitution, national constitutions and sovereignty: an assessment of a ‘European constitutional order’

Abstract:

The purpose of this paper is to assess the implications of the "Treaty establishing a Constitution for Europe" for the national constitutions and, in particular, their central concept of sovereignty. It takes as a starting point the criteria for retaining sovereignty, which were elaborated in the Maastricht decisions of the German and Danish highest courts, and have been widely invoked in national constitutional literature. The paper contends that the EU Constitutional Treaty strengthens the case for revising the concept of sovereignty, as was proposed by many scholars in the wake of the Maastricht decision. A re-assessment of sovereignty, in turn, provides a stronger ground for speaking about a genuine "European constitutional order". However, this necessitates a wider recognition of the EU's effects on sovereign governance in the national constitutions, many of which still make minimal or even no reference to the EU, and thus sustain the potential for destructive constitutional clashes based on the national limits to integration.