Constitutional and Institutional Law of the EU (LAWS0046)

This module introduces students to the terms of debate on Euroconstitutionalism and to enable them to develop their own considered views.

The European Union is currently the most sophisticated example of a constitutional-legal order “beyond the state,” yet its very meaning and purpose remain deeply controversial. Debate typically focuses on a “democratic deficit” of the EU; the concern is that through ongoing process of “over-constitutionalisation”, political decisions of high salience are withdrawn from democratically legitimized institutions of the Member States and immunized against political correction. The role of the Court of Justice of the EU (CJEU) is often seen as particularly problematic in that context.

As a consequence, EU law and governance, it is widely believed, suffer from a systematic economistic bias, flowing from the priority accorded by the Treaties and the European courts to the construction of an internal market based on freedom of movement and undistorted competition.

This economistic bias, it is often charged, has undermined national systems of regulation and social welfare, rooted in history and democratic politics, through the systematic pursuit of ‘negative integration’, without replacing them with equivalent forms of rights protection at the European level. In a climate of populist responses, does the idea of a constitutionalization of the EU still have a chance; and what should be its underlying normative promise?

We shall discuss tensions between markets and the claims of advanced democracy generally; between economic freedoms and social rights in the EU; between judicial role and politics; tensions which form part of persistent complaints about a democratic deficit or justice deficit at the heart of the EU.

To that end, the module aims at combining theoretical concepts with careful analysis of institutional and jurisprudential developments. We discuss various answers—such as ordoliberalism and democratic experimentalism among others. External speakers will be invited.

The aim of this module is to introduce participants to the terms of debate on Euroconstitutionalism and to enable them to develop their own considered views.

This module is suitable both for students who are new to this field as well as those who are intent on acquiring a more in-depth critical understanding of the complex context of this subject area.

By the end of the module, you should be in a position to:

• comment and substantiate your views on (EU-) constitutionalism beyond the state and the development of the EU and its constitutional framework;
• competently participate in current debates (on Brexit, among others); and propose future directions of EU law and the EU as a polity itself.

Module syllabus

This module is subject to change.

• The European Legal Order: Contemporary Problems in a Historical Perspective
• Normative and theoretical paradigms of thought and the two European legal systems: the EU and the European Convention on Human Rights
• The CJEU and the Transformation of the EU legal order: from economic freedoms to fundamental (social) rights
• Uneasy legal pluralisms: the relationship between EU law and national law, with specific reference to the CJEU’s OMT decision (C-62/14)
• Sovereignty and solidarity: The (failure of) EU governance and the contemporary refugee crisis
• Concluding Discussion and Perspectives on Brexit

Recommended materials

• Dieter Grimm, The Constitution of European Democracy, OUP 2017.
• Oliver Gerstenberg, Euroconstitutionalism and Its Discontents, OUP 2018.

Module reading lists and other module materials will be provided via online module pages, available at the beginning of term once students have enrolled.

Key information