Module-1: Theoretical perspective of European Integration:

1.1- Evolution of European Inter- State System & Historical Dev. Paving the way for
possibility of integration:

There are diff. ways to build Europe and each one has its own theoretical framework to back
its claims. The final result is the same, the creation of a European entity, but the reasons
have been changing during all the process. At the beginning it was clear that avoiding wars
was the main target of the European organization, nowadays this target has been achieved
because a war b/w France and Germany seems impossible. At the moment the target is
having a strong union able to compete with other blocks of the world at least in equal terms
and avoid the decline of Europe as a world leader. There are three main theories in the
European building process, neo functionalism, Intergovernmentalism and federalism, plus
some other minor theories. According to the political believes of each person involve in the
process one theory is more important than other. Theories are imp. in 3ways, explaining the
integration, analysing governance and constructing the EU. We need to understand why
the integration has taken its current shape in order to understand how the EU works
nowadays and what are the key actors involved in the European building process to develop
further the EU.

1.2) Theoretical & conceptual approaches to understand the European integration

process:

Neofunctionalism: This theory is one of the most imp.in the current EU, and can be used to
explain many aspects of the working systems of our institutions and decision making.
Neofunctionalism wants to replace of power politics with a new supranational style following
a clear strategy. First, areas of low politics should be integrated, but ensuring that these are
key strategic economic sectors, as coal and steel, the first sector to be integrated in the
European building sector with the Treaty of the European Coal and Steel Community (ECSC)
The importance is not the high politics but economic areas that have to connect needs and
expectations, leaving aside big issues as culture or defence. Economy here plays an imp. role
because as closer economy we have, easier will be to have a common state because the
interest of the economical actors will be the same and they will search for common decisions
that just a common authority could deliver.
-Neofunctionalism is also focus on institutional issues because it promotes the creation of a
high authority to oversee the integration acting as a neutral actor b/w the disputes of the
member states, looking after the common wealth over the national interest.

-Another imp. task of this institution is acting as a sponsor of further integration. It is clear
that this institution is the EC in the EU, because it is the executive branch of the Union, it acts
independently from the States, even the working staff of the Commission have to sign a paper
accepting that they will work for Europe, and not for their national states. Also, the EC is
pushing constantly for deeper integration in existing policies, it does not mean that the EC is
going to take the best decision for Europe; it means that the Commission is going to take a
decision for deeper Europe always.

-According to neofunctionalism deeper integration will come because of social interest, becoz
the benefits are going to be imp. & Society will want to have more benefits. The European
integration, as a building process is almost always willing to include new policies under the
structure of the EU, but never gives back the power over these policies to the national
governments. Europe takes from the national level to the European level, and never the other
way around. Anyway, this theory overemphasizes the power of the European Institutions and
it obviates that the institutions are often dominated by national interests.

Ex- The Commission of Agriculture of the European Commission is a French citizen, or the
Commissar for internal market is a German becoz these states have huge interests in these
policies.

Liberal Inter governmentalism: intergovernmental always factored domestic forces into

their equations. Their objective was never to understand European Integration as a mere
temporary alliance directed at (military) security, but to bring the nation-state back to the
centre of its analysis. The basic point intergovernmental made was that European Integration
tended to flourish where positive outcomes for all involved could be guaranteed (the
Common Market serves as the foremost ex. in this context) but would stop once one or more
countries' national interests directly conflicted with those of others. Yet, like neo-
functionalism, intergovernmentalism was quickly met by events that did not fit its theoretical
framework. The signing of first the Single European Act (1986) and subsequently the
Maastricht Treaty (1991) asked serious questions of the dichotomy between low and high
politics at intergovernmentalism’s core
2) The international level- i.e., govt. to govt.: Interstate bargaining= the bargaining process
that goes on b/w stages when they have to make decisions at an international level.

Multi- level governance: is an approach in political science and public administration theory
that originated from studies on European integration. The concept of multi-level governance
was developed in the early 1990s. The theory resulted from the study of the new structures
that were put in place by the EU (Maastricht Treaty) in 1992. Multi-level governance gives
expression to the idea that there are many interacting authority structures at work in the
emergent global political economy. It illuminates the intimate entanglement b/w the domestic
and international levels of authority". Multi-level governance was first developed from a
study of EU policy and then applied to EU decision-making more generally. The multi-level
governance theory describes the EU as a political system with interconnected institutions that
exist at multiple levels and that have unique policy features. The EU is a political system with
a European layer (European Commission, European Council and European Parliament), a
national layer and a regional layer. These layers interact with each other in two ways:

1st, across different levels of govt. (vertical dimension) = The "vertical" dimension refers to
the linkage’s b/w higher and lower levels of government, including their institutional,
financial, & informational aspects.

2nd, with other relevant actors within the same level (horizontal dimensions). The "horizontal"
dimension refers to co-operation arrangements between regions or b/w municipalities. These
agreements are increasingly common as a means by which the effectiveness of local public
service delivery and implementation of development strategies can be improved.

Social Constructivism: The key thinkers of this social theory link with the EU are Jeffrey
Checkel and Thomas Risse. It stresses the importance of the ideas as a leading force in the
process of integration, more than other factors as economy or politics. The positions of the
political actors of the EU are shaped not only by the national pursuit of national or self-
interest but by the bargaining process itself, especially the pressure to conform or reach
consensus. & Hence the national interest is not pre-determined, but constructed during the
process. This theory suffers an important methodological weakness as accepts that within
anarchy framework norms can emerge.

The 3 contributions of Social Constructivism: 1) accepting the mutual constitutiveness of

agency & structure allows for a deeper understanding of Europeanization including its impact
on statehood in Europe.
2) emphasizing the constitutive effects of European law, rules & policies enables us to study
how European integration shapes social identifies & interests of actors.

3) focusing on communicative practices permits us to examine more closely how Europe &
the EU are constructed unorganized manner, how actors try to come to grips with the
meaning of European Integration and how they develop a European public sphere.

Conclusions: The EU is unique and cannot be explained by just one of these theories, but at
the same time, all these theories can explain partly the EU. Of course, there are theories more
important than others in the EU. Neo functionalism and Intergovernmentalism have present
since the creation of the first Community and Federalism afterwards has had importance in
the Union. Currently the institutional framework can be explained according to a triangle
between the three main institutions, the EC, neo functionalism, the Council of the EU,
Intergovernmentalism, and the European parliament, Federalism. Anyway, the evolution of
these institutions has had influences from other theories and its current shapes differ from its
original shapes.

1.3 Tracing the process of integration through treaties n norm building:

From ECSC to the EEC: The European Communities (EC) were three international
organizations that were governed by the same set of institutions. These were the European
Coal and Steel Community (ECSC), the European Atomic Energy Community (EAEC or
Euratom), and the European Economic Community (EEC); the last of which was renamed
the (EC) in 1993 by the Maastricht Treaty establishing the European Union. The EU was
established at that time more as a concept rather than an entity. The ECSC ceased to exist in
2002 when its founding treaty expired. The European Community was merged with the
second and third EU pillars by the Treaty of Lisbon in 2009, finally allowing the European
Union to move beyond being only a concept and to assume the shape of a legally
incorporated international organization & as the legal successor to the Community. However,
the reformed EU has not become entirely unified, because Euratom, though governed with
the EU by the common set of institutions, has been retained as an entity distinct from the EU,
along with a no. of other international entities, such as the European Investment Bank, the
European University Institute, the European Stability Mechanism, and the Unified Patent
Court.

*The treaty establishing the European Economic Community (EEC) is mostly referred to one
when speaking of Treaty of Rome signed on 25 March 1957 with two aims: transform the
conditions of trade and production on the territory of its six members and serve as a step
towards the closer political unification of Europe. The objective “ever closer union” b/w
European peoples emerged for the 1st time & was mentioned in the Treaty of Rome’s
preamble.

EEC to the Single European Act:

*The Single European Act (SEA) 1987 amended the Treaty of Rome. Its aim was to create a
single internal market, which had been proving difficult under the existing Treaties. The SEA
replaced many unanimous decision-making processes with Qualified Majority Voting
(QMV), in order to facilitate the adoption of a raft of EU legislation by the end of 1992.

Single European Act (SEA), agreement enacted by the European Economic Community
(EEC; predecessor to the European Community and, later, the European Union) that
committed its member countries to a timetable for their economic merger and the
establishment of a single European currency and common foreign and domestic policies. It
was signed in Feb. in Luxembourg and The Hague. With its economic provisions, the SEA
began the world’s largest trading area. It did so by permitting the free movement of goods,
capital, labour, and services among and b/w member states.

Extras:1- What is the Treaty of Lisbon? (Initially known as the Reform Treaty) is an
international agreement that amends the two treaties which form the constitutional basis of
the European Union (EU). The Treaty of Lisbon was signed by the EU member states on 13
Dec.2007, and entered into force on 1 Dec.2009.

2-What is the Treaty of Nice? The Treaty of Nice amending the EU Treaty, the Treaties
establishing the European Communities and certain related acts was signed in the presence
of the European Parliament President. The aim of the Treaty of Nice was to reform the
institutional structure of the European Union to with stand the challenges of the new
enlargement.

3-What happened to the European Community after the Lisbon Treaty? Under the
amendments of the Lisbon Treaty, the European Community —which had provided the
economic framework upon which the EU was built—disappeared, and its powers and
structure were incorporated into the EU.

Nice to Lisbon treaty:

Another Treaty change agreed in Nice in 2001 came into force in 2003. Institutional changes
allowed the EU to expand in 2004 to include 8central and eastern European States, Cyprus
and Malta. The institutional structure set up for 6 States in the 1950s needed further
adjustment to cope with enlargement, and following the accession of Bulgaria and Romania
in 2007, the EU Treaties were again amended by the Treaty of Lisbon, which came into force
in December 2009. Treaty of Nice- In Feb. 2003 the Treaty of Nice came into force. The
main purpose of the Treaty was to facilitate the major EU enlargement (10 new states)

Lisbon Treaty- Lisbon was an attempt to make the EU more democratic, more transparent
and more efficient. It led to the appointment of a number of a number of new posts including
President of the European Council and High Representative of the Union for Foreign Affairs
and Security Policy

Module-2 Functions, Power n Role of the European Union Institutions

European Union Commission: an institution of the European Union (EU) and its constituent
entities that makes up the organization’s executive arm.The EC also has legislative functions,
such as proposing new laws for the European Parliament, and judicial functions, such as
finding legal solutions to business and trade issues between countries within the EU. The
body’s primary tasks, however, include:

 Administration and implementation of EU and community policies and legislation,

including formulation and spending of the budget
 Initiation and drafting of community legislation
 Enforcement of EU and community law
 Representation of the EU and the communities at the international level, including
negotiation of international treaties

However, the EC is charged with representing the EU or community interest, not the interests
of the member states, and the commissioners are called to act independently in that interest.
They are expressly forbidden to take instructions from their member state. Because of its
responsibility to represent the European interest and enforce the treaties and legislation that
provide the legal foundation for the EU and communities, the EC is known as the guardian of
the treaties.

The EC is made up of one member from each of the EU’s 27 member states. The Lisbon
Treaty, which reformed the governance of the EU, went into effect on December 1, 2009.
One of the treaty’s key provisions was to reduce the number of commissioners to two-thirds
of that number by 2014 so that thereafter member states would provide the EC with
commissioners on a rotating basis.

European Parliament: is one of the legislative bodies of the European Union and one of its
seven institutions. Together with the Council of the European Union (known as the Council
and informally as the Council of Ministers), it adopts European legislation, following a
proposal by the European Commission. It represents the 2 nd largest democratic electorate in
the world after the Parliament of India. The Parliament is the "first institution" of the
European Union (mentioned first in its treaties and having ceremonial precedence over the
other EU institutions),[8] and shares equal legislative and budgetary powers with the Council
(except on a few issues where special legislative procedures apply). It likewise has equal
control over the EU budget. Ultimately, the European Commission, which serves as the
executive branch of the EU, is accountable to Parliament. In particular, Parliament can decide
whether or not to approve the European Council's nominee for President of the Commission,
and is further tasked with approving (or rejecting) the appointment of the Commission as a
whole. It can subsequently force the current Commission to resign by adopting a motion of
censure. The president of the European Parliament is the body's speaker and presides over the
multi-party chamber.

The European Council: The European Council consists of the heads of state or government
of the EU's member states, together with its President and the European Commission
President. It defines the EU's general political direction and priorities.

The Council of the EU: The Council of the EU represents the member states' governments.
Informally also known as the EU Council, it is where national ministers from each EU
country meet to adopt laws and coordinate policies. *** IN SHORT**

The Council of European Union/The European Council: ( Union, often referred to in the
treaties and other official documents simply as the Council, and informally known as the
Council of Ministers) Role: Voice of EU member governments, adopting EU laws and
coordinating EU policies. Members: Government ministers from each EU country, according
to the policy area to be discussed: President: Each EU country holds the presidency on a 6-
month rotating basis. Established in:1958 (as Council of the European Economic
Community): Location: Brussels (Belgium)

In the Council of the EU, informally also known as the Council, government ministers from
each EU country meet to discuss, amend and adopt laws, and coordinate policies. The
ministers have the authority to commit their governments to the actions agreed on in the
meetings. Council meetings take place in Brussels, except for three months (April, June and
October) when they are held in Luxembourg.

What does the Council do? negotiates and adopts EU laws, together with the European
Parliament, based on proposals from the European Commission:

 coordinates EU countries' policies

 develops the EU's foreign & security policy, based on European Council guidelines
 concludes agreements between the EU and other countries or international
organisations
 adopts the annual EU budget - jointly with the European Parliament

Composition: There are no fixed members of the EU Council. Instead, the Council meets in
10 different configurations, each corresponding to the policy area being discussed.
Depending on the configuration, each country sends their minister responsible for that policy
area.

European Court of Justice: formally just the Court of Justice, is the supreme court of the
European Union in matters of European Union law. As a part of the Court of Justice of the
European Union, it is tasked with interpreting EU law and ensuring its uniform application
across all EU member states under Art. 263 of the Treaty of the Functioning of the European
Union (TFEU). The ECJ is the highest court of the European Union in matters of Union law,
but not national law. It is not possible to appeal against the decisions of national courts in the
ECJ, but rather national courts refer questions of EU law to the ECJ. However, it is ultimately
for the national court to apply the resulting interpretation to the facts of any given case,
although only courts of final appeal are bound to refer a question of EU law when one is
addressed. The treaties give the ECJ the power for consistent application of EU law across
the EU as a whole. The court also acts as an administrative and constitutional court between
the other EU institutions and the Member States and can annul or invalidate unlawful acts of
EU institutions, bodies, offices and agencies.

High Representative of the Union for Foreign Affairs n Security Policy (Art. 27, TEU)
The High Representative of the Union for Foreign Affairs and Security Policy (HR/VP) is the
chief co-ordinator and representative of the Common Foreign and Security Policy (CFSP)
within the European Union (EU). The Treaty of Amsterdam had established the position of
High Representative for Common Foreign and Security Policy. The position was aggrandised
by the Lisbon Treaty, which established its current title and powers, including a seat on the
European Commission, and a chair of the council of EU foreign ministers. The High
Representative is appointed by the European Council acting by a qualified majority, with the
agreement of the President of the Commission for a mandate of five years. The role was
created under the Treaty of Amsterdam and expanded by the Treaty of Lisbon.
 MODULE-5
EU INTERNAL MARKET: FREE MOVEMENT: The internal market is an area of
prosperity and freedom, providing access to goods, services, jobs, business opportunities and
cultural richness. Continuous efforts are required to ensure the further deepening of the single
market, which could yield significant gains for EU consumers and businesses. In particular,
the digital single market opens up new opportunities to boost the economy (through e-
commerce), while also cutting red tape (through e-governance and the digitalisation of public
services). Despite these substantial moves towards a (digital) single market, challenges
remain.

Legal basis- Articles 4(2)(a), 26, 27, 114 and 115 of the Treaty on the Functioning of the
European Union (TFEU).

27 EU member states: -Iceland, Liechtenstein, Norway=EEA, Switzerland - Sectoral

agreements, Potential EU succession candidates, post-Soviet countries, Turkey, UK

FOUR FREEDOMS GUARANTEES= Goods, Capital, Services, People

 Labour specialization- Historically associated with growth of total output and trade,
rise of capitalism and increased complexity of industrialized processes.
 Economies of scale- Cost advantages due to efficient production, larger business more
cost savings
 Moves goods to areas of value- Improving efficacy of allocation of resources
HISTORY-: 1)1957- EECs common market with free movement; 2) Customs union in
principles- 6 members; 3)1980- Thatcher sends Cockfield to delos commission; 4)1986-
single European act (positive and negative integration); 5)1992-Maastricht treaty- EMU (EU
formation); 6)1997-Amsterdam treaty- apply Schengen Agreement; 7) Lisbon treaty- growth,
price stability and competition; 8) Move to European market.
FREE MOVEMENT OF WORKERS
1) Free movement of people
a) EU citizens can move without any reason and reside in another Member State without
causing undue burden on social welfare and public safety
i) Travel
ii) Reside
iii) Work there (permanently or temporarily)
 b) National Treatment (Art 45 of TFEU)
c) Reduce administrative formalities and recognize professional qualifications of other
Member States
2) Free movement of workers- One of the four freedoms enjoyed by EU citizens is the free
movement of workers. This includes the rights of movement and residence for workers,
the rights of entry and residence for family members, and the right to work in another
Member State and be treated on an equal footing with nationals of that Member State.
Restrictions apply for the public service. The European Labour Authority serves as a
dedicated agency for the free movement of workers, including posted workers.
Freedom of movement for workers has been one of the founding principles of the EU
since its inception. It is laid down in Article 45 TFEU and is a fundamental right of
workers, complementing the free movement of goods, capital and services within the
European single market. It entails the abolition of any discrimination based on nationality
as regards employment, remuneration and other conditions of work and employment.
Moreover, this article stipulates that an EU worker has the right to accept a job offer
made, to move freely within the country, to stay for the purpose of employment and to
stay on afterwards under certain conditions.
3) Free movement of citizens
Article 20(1) TFEU establishes the concept of EU citizenship by stating that ‘Every
person holding the nationality of a Member State shall be a citizen of the Union’, while
Article 21(1) TFEU provides that ‘Every citizen of the Union shall have the right to move
and reside freely within the territory of the Member States, subject to the limitations and
conditions laid down in this Treaty and by the measures adopted to give it effect’.
Free movement of people has existed since the foundation of the European Economic
Community in 1957. It was introduced from an economic point of view, since the right
was linked to a person's status as a salaried worker. The right was then extended to self-
employed persons and service providers. Family members were entitled to the same
rights. In effect, free movement of people was part of the broader project of realising a
common market with free movement of capital, goods and services.
EU citizens have the right to enter, reside and remain in the territory of any other Member
State for a period of up to three months simply by presenting a valid passport or national
identity card: no other formality is required. If they intend to remain for a period
exceeding three months, a residence permit must be obtained.
THE SCHENGEN AGREEMENT: The Schengen Agreement signed on June 14, 1985, is a
treaty that led most of the European countries towards the abolishment of their national
borders, to build a Europe without borders known as the “Schengen Area”. Signed in
Luxemburg, initially by only five EU countries, the agreement remains one of the world’s
biggest areas that have ended border control between member countries.

HISTORY - The concept for free movement between the European countries is very old and
it can be found through the Middle Ages. Whereas, in modern times this idea has discoursed
ever since Europe suffered detriment resulted from the 2nd World War. However, concrete
actions in this regard only took place during the 80s, as Europe was stuck inside an
everlasting debate of two opposing fragments: the one that was supporting the idea of free
Europe with no internal border checks amongst countries, and the other part that was
absolutely against it.

France and Germany are the two pioneering countries to take the initial step as regards of free
movement concept, steps that were even more concrete, as they commonly agreed to move
this over-debated concept into the next level. As a final point of this journey, what it came to
be “The Schengen Agreement” – covering the gradual abolishment of the internal borders
between countries and extended control of the external borders, was only signed on 14 June
1985. The Agreement was signed by the five (5) following European countries: France,
Germany, Belgium, Luxemburg, and the Netherlands, in Schengen, a small village in
Southern Luxemburg on the river Moselle.

FREE MOVEMENT OF GOODS

The free movement of goods is secured through the elimination of customs duties and
quantitative restrictions and the prohibition of measures having an equivalent effect. The
principles of mutual recognition, elimination of physical and technical barriers and promotion
of standardisation were added in order to continue the completion of the internal market. The
adoption of the New Legislative Framework in 2008 strengthened the free movement of
goods, the EU’s market surveillance system and the CE mark. The COVID-19 pandemic has
had negative implications for the free movement of goods, however. A study from early 2021
pictures how the effect of future pandemics on the free movement of goods may be lessened
by implementing measures that boost the internal market’s resilience.
The right to the free movement of goods originating in Member States, and of goods from
third countries which are in free circulation in the Member States, is one of the fundamental
principles of the Treaty (Article 28 of the TFEU). Originally, the free movement of goods
was seen as part of a customs union between the Member States, involving the abolition of
customs duties, quantitative restrictions on trade and equivalent measures, and the
establishment of a common external tariff for the Union. Later on, the emphasis was placed
on eliminating all remaining obstacles to the free movement of goods, with a view to creating
the internal market.

LEGAL BASIS- Article 26 and Articles 28-37 of the Treaty on the Functioning of the
European Union (TFEU).

FREE MOVEMENT OF SERVICES

Art 56 of the TFEU - Freedom to provide services
Art 49 of the TFEU Freedom of Establishment
DEFINITION: "established" means to participate in economic life "on a stable and
continuous basis", while providing "services" meant pursuing activity more "on a temporary
basis".
1. Freedom to provide services for remuneration especially in commercial or
professional activity
2. Dutch lawyer moved to Belgium while advising a client
3. What is included in services?
i. Higher education: a) Secondary education, b) Contrasting
ii. Health care
iii. Refusal to reimburse medical expenses abroad
4. Illegal Services
5. Digital Single Market
FREE MOVEMENT OF CAPITAL

The free movement of capital is one of the four fundamental freedoms of the EU single
market. It is not only the most recent one but, because of its unique third-country dimension,
also the broadest. The liberalisation of capital flows progressed gradually. Restrictions on
capital movements and payments, both between Member States and with third countries, have
been prohibited since the start of 2004 as a result of the Maastricht Treaty, although
exceptions may exist.
Legal basis-Articles 63 to 66 of the Treaty on the Functioning of the European Union
(TFEU).

CAPITAL MOVEMENT

1. Capital Transfer: Capital all over EU can be transferred in any amount to any
country, even non-EU countries given the currency is Euro.
 Credit/debit card charges, ATM withdrawals – charged as domestic
 Cheques and paper based – not standardized
 Large transactions – clearing system called TARGET
2. Single currency and monetary policy
 Maastricht Treaty created EMU-European System of Central Banks to
coordinate monetary policy, locking exchange rates and creating single
currency
 19 MS with Euro
 Others have opted out or delayed accession (Eurozone crisis)
3. Plan for CMU (Capital Markets Union)
 Harmonize laws relating to capital market
 Signal to UK to remain part of EU
Division of competences within the European Union
The Treaty of Lisbon clarifies the division of competences between the European Union (EU)
and Member States. It introduces a precise classification for the first time in the founding
Treaties, distinguishing between three main types of competence: exclusive competences,
shared competences and supporting competences.
THE THREE MAIN TYPES OF COMPETENCE: The Treaty on the Functioning of the
EU (TFEU) distinguishes between three types of competence:
1. Exclusive competences (Art.3 of the TFEU): the EU alone is able to legislate and
adopt binding acts in these fields. The Member States’ role is therefore limited to
applying these acts, unless the Union authorises them to adopt certain acts
themselves; The EU has exclusive competence in the following areas:
 customs union
 the establishing of competition rules necessary for the functioning of the
internal market
 monetary policy for euro-area countries
  conservation of marine biological resources under the common fisheries
policy
 common commercial policy.
2. Shared competences (Article 4 of the TFEU): the EU and Member States are
authorised to adopt binding acts in these fields. However, Member States may
exercise their competence only in so far as the EU has not exercised, or has decided
not to exercise, its own competence; EU and its Member States applies in the
following areas:
 internal market
 social policy (but only for aspects specifically defined in the treaty)
 economic, social and territorial cohesion (regional policy)
 agriculture and fisheries (except conservation of marine biological resources)
 environment
 consumer protection
 transport
 trans-European networks
 energy
3. Supporting competences (Article 6 of the TFEU): the EU can only intervene to
support, coordinate or complement the action of Member States. Consequently, it has
no legislative power in these fields and may not interfere in the exercise of these
competences reserved for Member States. Supporting competences relate to the
following policy areas:
 protection and improvement of human health
 industry
 culture
 tourism
 education, vocational training, youth and sport
 civil protection
 administrative cooperation.
MODULE-6
THE PRINCIPLES OF CONSTITUTIONALISM – EUROPEAN UNION
INTRODUCTION(IMP)***
 Constitutionalism is the idea, often associated with the political theories of John
Locke and the founders of the American republic, that government can and should be
 legally limited in its powers, and that its authority or legitimacy depends on it
observing these limitations.
 Constitutionalism is a political philosophy based on the idea that government
authority is derived from the people and should be limited by a constitution that
clearly expresses what the government can and can't do. It's the idea that the state is
not free to do anything it wants, but is bound by laws limited its authority.
Constitutionalism has a vibrant history among the English people, and that tradition
has been passed on to other nations, most notably to us as Americans. Let's dig deeper
and learn more about constitutionalism.
IN EU CONTEXT
 Within the constitutional scholarship on the European Union (EU), the theory of
‘constitutional pluralism’, ie the notion that both the Union and the Member States
have autonomous constitutional orders and that there is no clear hierarchy between
them, has been advanced by scholars for decades
 This position was always criticised by ‘statist scholars’, who argued that only the
Member States had constitutions worthy of the name and that the very concept of
constitutional pluralism was oxymoronic, on the one hand, and by ‘cosmopolitan
scholars’, who ultimately believed that both the Union and the Member States
belonged to the same monist international legal order, on the other.
 European Union (EU) has been thriving for decades. A subtle yet important factor in
its achievement of economic prosperity and further institutional integration has been
the agreement on and commitment to upholding common values laid out in Art.2 of
the Treaty on European Union (TEU),
 These provisions of the EU legal system are not only fundamental values in a
constitutional democracy, but these values form the core of the institutional identity of
the EU.
 In the last decade, the European Union has seen an increasing number of attacks on, or
even rejection of, some of these founding values by none other than democratically
elected governments of EU member states.

VARIETIES OF CONSTITUTIONALISM
 That the EU Member States are characterised by different forms of constitutionalism
is, in one sense, a trivial point that can be glimpsed by a formal analysis of the
constitutions of the EU Member States: some are republics (for example France) and
others are constitutional monarchies (for ex- Spain).
 The EU thus unites Member States with what used to be conceived of as completely
incompatible, even warring, regime types: constitutional monarchies and republics.
 During the modern revolutions and for more than a century after, this difference in
regime type was the political and constitutional question that separated the new world
from the old world, divided Europe internally, and determined the constitutional
identity of a political community.

TYPES OF CONSTITUTIONALISM
 Post-fascist Constitutionalism
 Evolutionary Constitutionalism
  Post-communist Constitutionalism
 Digital Constitutionalism
POST-FASCIST CONSTITUTIONALISM
 The first variety of constitutionalism of the EU Member States is post-fascist
constitutionalism, epitomised by the German Basic Law
 It is also strongly influential in post-WWII Italy and the Mediterranean Member States
that joined the EU in the 1970s (Spain, Portugal and Greece).
 Crucially, beyond the Member States, post-fascist constitutionalism dominates the
project of European integration, both the EEC (European Economic Community)/EU
and the European Convention on Human Rights (ECHR)
 Within this form of constitutionalism, the constitutional regime is born out of a fear of
the internal collapse of the legal and political order; a fear of the rise of
totalitarianism.
 Within post-fascist constitutionalism, constitutional authority is born out of a fear of
the destructive potentials of popular sovereignty and the political power of the masses:
a fundamental fear of the people.
 The danger the constitutional order has to defend society against is an ‘excess’ of
democracy
 Democracy has to be disciplined, limited, controlled, and the constitution is the means
through which this is done.
 The post-fascist constitutions aim at constraining or neutralizing the political power of
the people.
EVOLUTIONARY CONSTITUTIONALISM
 Post-fascist constitutionalism dominates contemporary European constitutional
thought.
 In evolutionary constitutionalism, the founding constitutional myth is not that of the
internal collapse of the constitutional order in fascism, authoritarianism or
totalitarianism and hence these states are not characterised by a fundamental fear of the
political power of the people
 In constitutional terms, democracy is understood as the sovereign will of the state as
expressed by Crown-in-Parliament.
 Paradigmatic examples of this evolutionary constitutionalism are the UK, Denmark
and Sweden
 Within post-WW II European constitutionalism, democracy has overwhelmingly taken
on the meaning of constrained or militant democracy, and constitutions are perceived
as moral-legal orders of values.
POST-COMMUNIST CONSTITUTIONALISM
 With the fall of communism and the collapse of the Soviet Union, a radical political,
economic and societal transformation was put in motion in Central and Eastern Europe
 A central part of this transformation was the adoption of liberal-democratic
constitutions that in many ways resemble the post-fascist constitutions.
 As is the case for post-fascist constitutionalism, post-communist constitutionalism
stresses strong protection of fundamental rights, the rule of law, a free press and
private property, and a strong Constitutional Court
 A further similarity consists in the complete symbolic break with the past, removing all
references to the values of the previous regime.
 A further similarity between post-fascist and post-communist constitutionalism is the
conception of the constitution as a legal rather than a political entity
  In contrast to the constitutionalism characteristic of the parliamentary democracies,
post-fascist and post-communist constitutionalism cannot tolerate the idea of the
constitution being silent on important constitutional issues.
 The post-communist constitutions are meant to achieve a substantive vision of
democracy, certain ‘democratic outcomes’ that protect society from the tyranny of the
majority
 In other respects, however, the post-communist constitutions are fundamentally
different from the post-fascist constitutions, warranting that they be treated as an
independent ideal type.

DIGITAL CONSTITUTIONALISM: If the digital environment, as a new space where

information and data flow, has been an opportunity to offer cross-border services and
exercise individual freedoms, it has also led to serious challenges for constitutional law.
 Since the end of the last century, the development of digital technologies has
challenged the protection of individuals’ fundamental rights, such as freedom of
expression, privacy, and data protection.
 This framework driven by liberal ideas has also empowered transnational corporations
operating in the digital environment, primarily online platforms, to perform quasi-
public functions in the transnational context, thus competing with public actors.
 Digital constitutionalism requires us to develop new ways of limiting abuses of power
in a complex system that includes many different governments, businesses, and civil
society organizations.
 Put differently, digital constitutionalism consists of articulating the limits to the
exercise of power in a networked society.
E-COMMERCE DIRECTIVE
 The adoption of the e-Commerce Directive can be considered a paradigmatic example
of the European liberal approach.
 As the analysis of the first Recitals can reveal, the primary aim of the e-Commerce
Directive is to provide a common framework for electronic commerce for “the proper
functioning of the internal market by ensuring the free movement of information
society services between the Member States.”
 When the US Congress passed section 230 of the Communication Decency Act in
1996, the primary aim was to encourage free expression and development of the digital
environment
 Based on the US “safe harbour” model introduced at the end of the last century by the
Communication Decency Act and the Digital Millennium Copyright Act, this regime
acknowledges the passive role of online intermediaries lacking any involvement in the
creation of content, and exempts them from liability for transmitting or hosting
unlawful third-party content.

DATA PROTECTION DIRECTIVE

 In the field of data, the European liberal approach is counterintuitive. At first glance,
the EU has not followed a liberal regulatory path. Rather than exempting online
intermediaries from liability even in the field of data, the EU decided to regulate the
processing of personal data to face the challenges coming from the increase in data
usage and processing relating to the provision of new services and the development of
digital technologies
 The rise and consolidation of data protection law can be explained as a response to the
information society driven by new technologies and, primarily, automated systems
implemented by public and private entities to process data.
 In other words, if the right to privacy were enough to meet the interests of individuals’
protection, in the information society the massive processing of personal data has
made it no longer sufficient to protect only the negative dimension of the right to
privacy, thus leading to the rise of a positive dimension fostering the degree of
transparency and accountability in data processing.