ABSTRACT
In this chapter I shall examine the landscape of the European Union constitution,1 offering a comparative and critical analysis of the values underlying this constitution by comparison with those of domestic legal orders. The chapter is set out as follows. First I consider the elements of the Union constitution, the Treaty Articles relating to European integration and rule of law principles, identified generally within the Treaties, and as general principles of law in the judgments of the Court of Justice. I then consider the relationship between the constitutional principles underlying legal orders generally and the core or deep values of the societies to which the constitution applies. Applying this analysis in the Union setting, I suggest that the Union legal order cannot, as a result of its limited jurisdiction and lack of historical longevity, be regarded as constitutive of Member States’ societies (considered collectively) in the manner of domestic constitutions. Finally, I consider the
1 Following Esteban’s formulation, I have adopted a ‘material’ reading of the Union constitution, treating those aspects of the Treaties that affirm the overall project of Union integration and fundamental rule of law values as the components of the constitution. At the same time, the supremacy doctrine clearly implies a constitutional significance for all Union legal demands arising under the Treaties, either directly or indirectly through secondary legislation, in terms of their operation within domestic settings. Esteban describes these two approaches as follows:
Since the Court has stated that the treaties are a constitutional chart of a community of law, this would logically imply that all the elements of the constitutional chart are, by definition, constitutional; therefore all values and principles belonging to the founding treaties are constitutional. This formal definition of a value or principle as constitutional could be contrasted with a material definition, implying that only those values and principles which would traditionally be regarded as being of a constitutional character are constitutional values and principles.
