Constitutional Balance in the EU after the Euro‐Crisis
| Published date | 01 September 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12037 |
| Author | Floris Witte,Mark Dawson |
| Date | 01 September 2013 |
Constitutional Balance in the EU after the Euro-Crisis
Mark Dawson and Floris de Witte*
This article analyses how the European Union’s response to the euro-crisis has altered the
constitutional balance upon which its stability is based. It argues that the stability and legitimacy
of any political system requires the structural incorporation of individual and political self-
determination. In the context of the EU, this requirement is met through the idea of constitu-
tional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU
law and institutional structure in the wake of the crisis – such as the establishment of the ESM,
the growing influence of the European Council and the creation of a stand-alone Fiscal Compact
– it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to
mediate conflicting interests in all three areas. By undermining its constitutional balance, the
response to the crisis is likely to dampen the long-term stability and legitimacy of the EU project.
This article analyses how the European Union’s (the Union, or EU) response to
the euro-crisis has altered the constitutional balance upon which the Union’s
stability is premised. It will first consider why the stability and legitimacy of any
political system requires the structural incorporation of individual and political
self-determination. It will highlight that in the context of the EU this require-
ment is traditionally met by accommodating a plurality of different interests in
the decision-making process and by protecting the sovereignty of the individual
Member States and their constituents. These commitments are firmly (if implic-
itly) entrenched in the treaties and serve as a constitutional balance that protects
the long-term stability of the Union. The first section breaks down the building
blocks of this idea of constitutional balance, distinguishing between its ‘substan-
tive’, ‘institutional’ and ‘spatial’ dimension. The article argues that the Union’s
response to the euro-crisis significantly alters the balance within each of these
three dimensions. Analysing reforms to EU law and to the Union’s institutional
structure in the wake of the crisis, such as the establishment of the European
Stability Mechanism, the growing influence of the European Council, and the
creation of a stand-alone Fiscal Compact, we will argue that recent reforms are
likely to have a lasting impact on the stability and legitimacy of the Union.
The response to the euro-crisis destabilises the Union’s substantive balance by
circumventing its limited mandate in redistributive policies, which was meant to
ensure that citizens have ownership and authorship over the core values that
shape their society (the second section). It equally recalibrates the institutional
balance by decreasing the voice of marginalised interests and representative
institutions. This loss of representative influence is likely to result in greater
*Mark Dawson is Professor of European Law and Governance at the Hertie School of Governance in
Berlin. Floris de Witte is Fellow at the London School of Economics and Political Science. The authors
would like to thank Damian Chalmers, Christian Joerges, Katharina Gnath and Jan Komárek for their
helpful comments on an earlier draft. The usual disclaimer applies.
bs_bs_banner
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(5) MLR 817–844
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
power for national executives, with responsibilities for the initiation of, and
compliance with, policy proposals shifting during the crisis towards the Euro-
pean Council (in the third section). Finally, the fourth section argues that the
Union’s response to the euro-crisis also threatens the spatial balance of the Union,
which protects the voice of smaller and poorer Member States and their citizens
from majoritarian or even hegemonic tendencies. The increased influence of the
bigger, more resourceful Member States, in combination with the changes to the
Union’s substantive and institutional structure, leads to the loss of political
autonomy for smaller and poorer Member States.
The article concludes that the disregard of the constitutional balance that is
laid down in new institutional arrangements (and indeed, the rejection of the
treaties’ normative structure altogether) in response to the euro-crisis not
only undermines the Union’s commitment to individual and political self-
determination, but also in the long run destabilises and de-legitimises the process
of European integration. We conclude with some tentative suggestions as to
how law could be used to re-invent constitutional balancing principles in a
post-crisis EU, ultimately arguing that such a re-invention requires EU leaders to
shift beyond the purely instrumentalist view of legal rules and institutions that has
animated their approach to EU governance in recent years.
CONSTITUTIONAL BALANCE IN THE EUROPEAN UNION
The constitutional balance of the EU is hardly ever discussed – in either
normative or descriptive terms.1Even the Convention on the Constitution for
Europe failed to address it.2To some extent, this neglect of the idea of consti-
tutional balance is understandable. Within the context of the Union, constitu-
tional balance is often seen in no more than functional or instrumental terms; as
a way to balance between different interest groups, political actors and institu-
tions in order to create a structure capable of achieving specific common
objectives. On this view, the gradual shift in the objectives of the integration
project – from peace and prosperity to political union with centralised monetary
and fiscal management – necessarily entails a shift in balance between the
priorities of the Union, between the competences of the Member States and the
EU, and between the Union’s institutions.3
Yet, a deeper and more fundamental idea of balance is, and must be, implicit
in the Union’s set-up. The EU, just like the nation state, is but a social artefact.
It does not serve a divine greater good, but rather provides a framework to
facilitate the attainment of the objectives of its constituents – whether citizens or
1 To the extent that it is discussed, authors have focused on the institutional balance within the
Union, that is, the relationship between the different Union institutions and the allocation of
power between them. See eg, K. Lenaerts and A. Verhoeven, ‘Institutional Balance as a Guarantee
for Democracy in EU Governance’ in C. Joerges and R. Dehousse, Good Governance in Europe’s
Integrated Market (Oxford: OUP, 2002).
2 J. P. Jacque, ‘The Principle of Institutional Balance’ (2004) 41 Common Market Law Review 387.
3 See eg, A. Sbragia, ‘Conclusion to the Special Issue on Institutional Balance and the Future of EU
Governance: The Treaty of Nice, Institutional Balance and Uncertainty’ (2002) 15 Governance 403.
Constitutional Balance in the EU
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited.
818 (2013) 76(5) MLR 817–844
To continue reading
Request your trial