The EU between constitutionalism and international organizations International constitutional law and democracy 23.10.08 Inger-Johanne Sand

Transnational law International law - the law between nation-states, (UN), - treaties, - in substance, - and in legal validity, (international relations) - diplomatic negotiations, - governments, Supranational law - law by international organizations which has been delegated specific parts of the constitutional power of the nation-states, (EU) - legislation which has direct effect on citizens, (law/politics) - EU/EC institutions and member states governments, Transnational law - law or legal practice which has been developped among non-state actors, - such as experts, NGOs, standardization committes, (ISO) - lex mercatoria : private international law, (organization studies) - administrative, technical processes, - second-level organs of government, NGOs, corporations,

The constitutionality of the EU : - direct effect of regulations, directives and treaties, - not only the governments, but also the peoples, - supranationality, - comprehensive legislative competences, - comprehensive administrative apparatus/ powerful Commission with comprehensive adm., execut powers, - admin and judicial decisions sanctionable in member st. - judicial review of directives in relation to treaties, vertically integrated politico-legal systems, judicial review no legislative/constitutional ”kompetenz-kompetenz”

When does a supranational treaty also become a constitutional treaty : Many new questions arise with the supranational treaties which did not arise with the international - purpose-oriented interpretation, - implied powers, - proportionality, - human rights, When does a supranational treaty also become a constitutional treaty : - several types of power are transferred, building on each other : - legislative, judicial (sanctionable), and executive/preparatory, - direct effect on citizens, - to create a vertically integrated legal order of its own,

”not only the states,. But also the peoples of Europe…..”,

What have the vital changes been? - the starting point: the Rome treaty, - not only the states, also the peoples, - the European Court of Justice, - the cases: van Gend en Loos, - Costa Enel, - direct effect, - supremacy, - judicial review, - the acquis communautaire, 1986 : the Single European Act, - qualified majority, - the internal market, 1992 : Maastricht : - extended competences, - the Euro, Lisbon : - social coherence Nice : extended competences,

Intergovernmentalism : - the member states are still the main actors, Theories : Intergovernmentalism : - the member states are still the main actors, - supported by both neo-liberal and democratic ideologies, Neo-functionalism : - the doctrine of direct effect, the internal market and the practice of the Commission and the Court, etc., have created a particular and integrationist dynamic, with spill-over effects, - integration, -deliberative supranationalism, Constitutionalism: – vertical integration, - direct effect, - transfer of constitutional powers, - normative and democratic constitutionalism, - democratic experimentalism, - strong and weak versions, Federations – confederations – or : sui generis?

The ”democratic deficit” literature, ”The state”, ”The nation” ”The people” – ”the demos” – what is the meaning of such a terminology ? Is there a ”peoples of Europe” ? Identity – citizenship. What are they connected to? Instrumental vs more contextual citizenship. Qualitative democracy vs. numeric democracy,

”The hallmark of citizenship in our democracies is that in citizens is vested the power, by majority to create binding norms…..” Such power has been found in the nation-states, but now also in the Union….? Citizenship is also about a social reality. ”Nationhood is a form of belonging.” What is belonging ? There are also different forms of belonging: - the family, the tribe, the nation,the region, the globe.

”At an inter-group level nationalism is an expression of cultural specificity underscoring differentiation, the uniqueness of a group as positioned in relation to others.” ”At an intra-group level it can be an expression underscoring the commonality, the sharedness of a group….” (p.342) ”The decoupling of nationality and citizenship opens the possibility of thinking co-existing multiple demoi.” (p.344) - there may be citizenship, legitimacy and authority on different levels,