ABSTRACT
Europe still has a constitution without a state. Since the 1960s, legal scholars and the judges of higher European and national courts have stressed-although applying different constitutional concepts-the constitutional quality of parts of European law.1 The European Treaties seem to include all the essential elements of a constitution:
• basic rights-including political rights and even affirmative action (Art. 13, 141 TEC) and a variety of social rights (Bogdandy 1999:26);
• an organizational (or procedural) element (Organisationsrecht): procedural norms, norms dealing with the order of institutions, competences, and so on;
• a clear distinction between primary law, which is on the higher level, and secondary law, which is governed by the rules of primary law.
