Miguel Poiares Maduro

Europe and the Constitution: What If this is as Good as it Gets?

In this essay, I argue that national constitutionalism is simply a contextual representation of constitutionalism whose dated and artificial borders are challenged by European constitutionalism. In themselves, constitutional ideals are not dependent nor legitimised by the borders of national polities. As a consequence, there is often no a priori claim of higher validity for national constitutionalism vis-avis European constitutionalism. My first objective at this point is to question the artificial supremacy of national constitutionalism and argue for a new form of constitutionalism. At the same time, I believe it will be possible to derive from a new analysis of constitutionalism a form of legitimation for the European Union arising from its constitutional and democratic added value in facing the present atomisation and deteritorialisation of normative power. The deconstruction of constitutionalism required by European integration may actually promote an extended application of its ideals. We will see that, in many respects, the problems of the European Constitution are simply reflections of the limits of national constitutionalism that we have for long ignored.

Reforming the Market or the State? Article 30 and the European Constitution: Economic Freedom and Political Rights

This article takes as its starting‐point the relationship between Article 30 of 30 of the EC Treaty (general rule on the free movement of goods) and the European Constitution. On the one hand, it examines Article 30 in the context of the constitutional dilemmas facing the European Union, particularly the balance of powers to be defined between Member States and the Union, between public power and the market, and between the legitimacy of Community law vis a vis that of national law. On the other hand, it reviews different conceptions of the European Economic Constitution by analysing the role of Article 30 in the review of market regulation.

Harmony and Dissonance in Free Movement

There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has ‘benefited’, until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court’s decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court’s approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more ‘aggressive’ interpretation in comparison with the free movement of goods.

The Heteronyms of European Law

Book reviewed in this essay: Phelan, D. Rossa, Revolt or Revolution: The Constitutional Boundaries of the European Community

The Chameleon State: EU Law and the Blurring of the Private/Public Distinction in the Market

The rethinking of the traditional role of the State in the market has brought with it a variety of new forms of exercise of public power and an increased blurring of the private/public distinction in the market. It is now common, for example, for the State to intervene in the market not through the traditional mechanisms of regulation or public ownership but in a private legal form, as another market participant. In some instances it is the State that grants private operators the shield of a public legal form. There are also instances where the state imposes on private entities the pursuit of actions that it itself may not be legally authorised to undertake. In all these cases, it becomes increasingly difficult to distinguish between private and public participation in the market and between the pursuit of traditional public goals and the pursuit of private interests whose protection the State deems in the public interest. This difficulty does not simply represent a conceptual challenge for the law. It also blurs the traditional distinction between the market and the State as alternative modes of decision-making subject to different mechanisms of accountability.

Passion and Reason in European Integration

One of the main functions of constitutionalism is that of installing reason into a democracy. I will briefly highlight some examples of how this works.As said, I conceive constitutionalism as an instrument of rationalization of democracy. In my view, it shapes democratic reason in at least three ways. First, constitutionalism defines the scope of democratic participation and, in reality, one of its original purposes was that of a more inclusive democracy. Constitutionalism determines whose (and what) costs and benefits should be taken into account in democratic decisions. In other words, constitutionalism determines who must have a voice and who’s interests are taken into account in the course of democratic deliberations. It defines the jurisdiction for measuring democracy. Second, constitutionalism requires democracy to balance the scope of participation with the intensity of impacts of democratic decisions. Democracy is not simply about counting heads. It has also to take into account the respective impact that different decisions may have on different people. Constitutionalism requires balancing the scope of participation (the degree of inclusion) in democratic decisions with the intensity of participation and the respective costs and benefits imposed by different decisions on different groups and people. Thirdly, constitutionalism is also an instrument of rationalization of democracy in that it helps to create the conditions for a free, informed and intersubjective democratic discourse.

COMMON MARKET LAW REVIEW

Aims The Common Market Law Review is designed to function as a medium for the understanding and analysis of European Union Law, and for the dissemination of legal thinking on all matters of European Union Law. It thus aims to meet the needs of both the academic and the practitioner. For practical reasons, English is used as the language of communication. Editorial policy The editors will consider for publication manuscripts by contributors from any country. Articles will be subjected to a review procedure. The author should ensure that the significance of the contribution will be apparent also to readers outside the specific expertise. Special terms and abbreviations should be clearly defined in the text or notes. Accepted manuscripts will be edited, if necessary, to improve the general effectiveness of communication. If editing should be extensive, with a consequent danger of altering the meaning, the manuscript will be returned to the author for approval before type is set. Submission of manuscripts