Online | Next Generation EU: Germany's Constitution - Sovereignty and Solidarity

About the talk

In response to the COVID-19 pandemic, the European Council’s 2020 Own Resources Decision of 14 December 2020 authorises the European Commission to borrow up to EUR 750 billion on capital markets on behalf of the European Union. It requires approval by all Member States. However, in Germany, a constitutional complaint was lodged against the German act of approval, by a political alliance wishing Germany to leave the EU, based on the argument that domestic ratification encroached upon the “constitutional identity” of the German Basic Law and that the Decision to be ratified in any case exceeded the EU integration agenda in a “manifest” and “structurally significant” manner.

By way of a critical comment on the FCC’s Order and its underlying reasoning and outlook, I want to pose the underlying question of sovereignty and solidarity in the contemporary EU. I propose to compare two conceptually opposed perspectives on sovereignty and solidarity: the first one—premised on traditional principal/agent analysis—thinks of the EU as a union based on the multi-level cooperation of sovereign states. The second one, by contrast, argues that we should think of sovereignty in terms of an ongoing democratic-experimentalist process of problem-solving under the condition of heightened uncertainty and mutual interdependence. That condition shapes how sovereignty is to be understood, as it becomes clear that also modern nation states themselves suffer from an intractable democratic deficit, with the consequence that they can no longer be seen as the principals.

About the Speaker

Dr. Oliver Gerstenberg

Senior Lecturer in Law at UCL

Dr. Oliver Gerstenberg is author of Euroconstitutionalism and Its Discontents (OUP: 2018) and Senior Lecturer at UCL LAWS. He serves as an advisor of the upcoming European Law Institute (ELI) project on Fundamental Constitutional Principles in the EU. In the past, he has held a JF Kennedy Memorial Fellowship at the Center for European Studies at Harvard University; was a Law and Public Affairs Fellow at the Woodrow Wilson School at Princeton University and a Jean Monnet Fellow at the EUI (Florence). He holds a doctorate from the Goethe University Frankfurt (Germany).

About the chair

Aidan O’Neill QC

Aidan O’Neill is a “double silk”, being Queen’s Counsel at both the Scottish and English Bars. He has a wide ranging legal practice north and south of the border. He has a particular expertise in commercial judicial review and in constitutional law. He is a specialist in European law/public law. He is a highly experienced pleader before the House of Lords/UK Supreme Court where he has appeared as senior counsel in over twenty appeals. He has also led cases before the Court of Justice of the European Union and has appeared before the European Court of Human Rights. In 2015 he was awarded the Legal 500 UK Bar Award for EU law silk of the year. Aidan is among the top ten individual barristers across the UK by appearances in the UK Supreme Court in the past ten years.

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