Book Review: Constitutional Change in the EU: From Uniformity to Flexibility?
| Author | Robert Schütze |
| DOI | 10.1177/1023263X0301000405 |
| Date | 01 December 2003 |
| Published date | 01 December 2003 |
| Subject Matter | Book Review |
Book Reviews
414 10 MJ 4 (2003)
Gráinne de Búrca and Joanne Scott (eds.), Constitutional Change in the
EU: From Uniformity to Flexibility?, Hart Publishing, 2000, xxviii + 372
pages, hardback, £ 97.
Demands for more flexibility and differentiation within the European constitutional
order have been voiced regularly at those constitutional moments that gave the
integration process a new direction. Past enlargements and past Treaty amendments
have vastly widened the spectrum of socio-economic conditions and political
preferences within the European Union. The need for some flexibility had become
inevitable with the southern expansion of the Community in the first half of the 1980s
and the enormously ambitious internal market project kickstarted by the Single
European Act. The introduction of forms of differentiated integration through the SEA,
however, instantly attracted ‘critical remarks’ from some of the most eminent
commentators of Community affairs: the unity of the Community legal order –
laboriously established in the 1960s and 70s – seemed to be put in danger.1 The fear of a
‘Europe of bits and pieces’ seemed indeed to become a reality with the adoption of the
TEU.2 Amsterdam and Nice further added and elaborated the mechanism of enhanced
co-operation as a constitutional mechanism of differentiated integration.3
‘Constitutional Change in the EU: From Uniformity to Flexibility?’ investigates the
new constitutional climate of flexibility.4 The book originated in a workshop which took
place at the European University Institute in 1999 and contains fourteen essays – each
looking at the issue of flexibility from a different angle – which shall be discussed in
turn.
Reflections on the future of legal authority within the EU are offered by Neil Walker. In
his contribution entitled ‘Flexibility within a Metaconstitutional Frame’ the author
identifies a distinct legal dimension to flexibility. Flexibility is perceived as a ‘non-
project’ that unfolds ‘in a sequence of strategic negotiations and gambits, of policy-
driven initiatives within discreet sectors, and of accommodations of new geopolitical
forces’ (p. 11). The resultant fragmentation of (the) legal order(s) would eventually
problematize the previously unchallenged legal authority of any particular order and
undermine its technical capacity. A new legal discourse would therefore be needed and
it is found in ‘metaconstitutionalism’, defined as rules about constitutional rules. Five
Review 1 (1987), 9-18.
2. Cf. D. Curtin, ‘The constitutional structure of the Union: A Europe of bits and pieces’, 30 Common
Market Law Review 1 (1993), 17-69
3. Cf. T. Bender, ‘Die verstärkte Zusammenarbeit nach Nizza: Anwendungsfelder und Bewertung im
Spiegel historischer Präzedenzfälle der differenzierten Integration,’ 61 Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 4 (2001), 729-770
4. Recent monographs dealing with the subject-matter include, inter alia, F. Tuytschaever, Differentiation
in European Union Law, (Hart Publishing, 1999), B. de Witte, D. Hanf, E. Vos (eds.), The many faces
of differentiation in EU law, (Intersentia, 2001).
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