Constitutional coups in EU law

Research output: Chapter in Book/Report/Conference proceedingChapter

16 Scopus citations

Abstract

Article 4 of the Treaty of the European Union (TEU) contains a microcosm of contradiction. It purports to announce the central principles of EU federalism by dividing jurisdiction between the EU and the Member States while still tying Member States to EU principles. Article 4(3) TEU commits Member States to EU loyalty. As a matter of law, Member States are required to ‘refrain from any measure which could jeopardise the attainment of the Union's objectives.’ The Union's objectives are very general and listed in Article 3 TEU. Among them are ‘peace, its values and the well-being of its peoples.’ The values referred to in Article 3 TEU point back to Article 2 TEU, where the commitments run broad and deep. The Union has pledged ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ The EU therefore is wedded to a particular vision of national constitutional order, one that contains classic liberal protections for citizens who retain rights of democratic self-determination in a nested polity bound by constraints of justice and solidarity. But Article 4 also commits the EU to self-restraint in telling its Member States what specific sorts of constitutional orders they must observe. Article 4(2) commits the Union to ‘respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional.’ Article 4, then, anticipates pluralism in national constitutional commitments alongside loyalty to the values of the Union. Article 4 therefore leaves open the question, ‘How much leeway do EU Member States have in setting their own constitutional parameters?’ In this chapter, I will suggest that EU pluralism does not mean that ‘anything goes’. What would the EU do with open dictatorship or a government that routinely violated the basic rights of its citizens? The EU has no mechanism for excluding such a state, but surely the EU could ostracize it under Article 7 TEU, which provides a mechanism for quarantining a state that violates values.

Original languageEnglish (US)
Title of host publicationConstitutionalism and the Rule of Law
Subtitle of host publicationBridging Idealism and Realism
PublisherCambridge University Press
Pages446-478
Number of pages33
ISBN (Electronic)9781316585221
ISBN (Print)9781107151857
DOIs
StatePublished - Jan 1 2017
Externally publishedYes

All Science Journal Classification (ASJC) codes

  • General Social Sciences

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