Introduction
l’uem reflète une construction qu’on pourrait qualifier de néolibérale en ce sens qu’il s’est agi d’adapter la politique économique et monétaire en fonction de la contrainte des marchés financiers. Les racines théoriques de l’uem révèlent en effet qu’il s’est agi, afin de garantir une stabilité macro-économique nécessaire à une monnaie unique, d’imposer le respect de règles dans la conduite des politiques monétaire et économique. Toutefois, il convient de relativiser la portée juridique de ces règles car, derrière le discours du constitutionnalisme économique, une large marge de manœuvre est laissée au politique.3
The observations we will offer here are broadly sympathetic to the interpretations offered by both Francesco Martucci and Hjalte Lokdam and Michael A. Wilkinson. We thoroughly agree that, under the guise of a purported economic constitutionalism,5 European elites have tried to remove highly contested matters from the realm of traditional democratic politics.6 The principal means of doing so has been the supranational imposition of rule-based constraints on the exercise of sovereign power at the national level. In our view, however, one should avoid speaking of these constraints in autonomously ‘constitutional’ terms (economic or otherwise), as that discourse obscures something crucial about the nature of EU governance. These constraints no doubt have had an impact on the exercise of constitutional power at the national level; nonetheless, they should not be understood as ‘constitutional’ in their own right.7 To use that terminology is in fact a category mistake, confusing the idea of a supranational ‘constitution’ with the EU’s essentially technocratic and juristocratic, i.e. ‘administrative’ (and hence ‘sub-constitutional’), character. This is not just a problem of legal semantics or a dispute over labels with no
1 Resource Mobilization and the Boundary between Administrative and Constitutional Power
The EU generally, and the emu more specifically, today sit uncomfortably at the boundary between mere administrative governance and the aspiration to a genuine form of supranational constitutionalism. European governance depends, first and foremost, on a delegation of regulatory power from constitutional bodies on the national level to primarily technocratic and juristocratic (again, ‘administrative’) agents on the supranational level. Of course, EU institutions also enjoy an electoral component by way of the European Parliament (ep) – something that many lawyers, judges and law professors often see as essential to advancing the EU’s autonomously democratic and constitutional legitimacy. Nonetheless, this electoral dimension of European governance has in fact done little to alter the fundamentally administrative character of European integration.8
The essential purpose of delegating regulatory power to EU institutions has been to create mechanisms to police the Member States’ fulfilment of their legal ‘pre-commitments’ to each other (most importantly, but hardly exclusively, in
One would never understand these limitations, however, by looking at the discourse of legal elites in the EU – lawyers, judges, law professors – who, for the most part, continue to describe the function of the EU’s supranational agents in autonomously constitutional terms. Perhaps the leading example is the landmark Les Verts judgment in 1986, in which the Court of Justice itself famously described the European Treaties as a “constitutional charter of a Community based on the rule of law”.12 This lofty characterization – which casts the EU as a vehicle for ensuring the rule of law through the enforcement
And yet, even as the Union’s output legitimacy (at least in terms of a prosperous internal market) has often met expectations, the EU is nonetheless still a paradoxical combination of strength and weakness. On the one hand, the Union itself has been accused of questionable self-empowerment,17 as well as developing mechanisms of democratic legitimation that are inadequate to
But one might fairly ask: how could the EU possibly achieve these demanding goals if it lacks the ability to mobilize its own revenues, most importantly via its own taxing and borrowing authority? This question of resource mobilization, frankly, is crucial to determining whether the EU is merely an (admittedly powerful) supranational administrative body rather than an autonomously constitutional entity in its own right. The EU Decision on own resources – which applies both to taxes as well as common borrowing under the Multiannual financial framework (mff) – requires unanimity in the Council and only the consultation of the European Parliament, and its entry into force is conditional upon the approval of the Member States according to domestic constitutional requirements (Article 311 tfeu). Moreover, the EU budget has traditionally been financed by national contributions (nearly 80%), whereas the remainder has come from a series of taxes that are in fact collected nationally – historically sugar levies, customs duties, and a percentage of the harmonized Value-Added Tax (vat).20 The pandemic response has altered this reality to some extent, by adding to these nationally-collected taxes a layer of shared
In other words, there remains no EU tax collection service that ‘wears the EU badge’, so to speak, operating on the basis of the EU’s own autonomous legitimacy rather than that of the Member States. The absence of a supranational power and legitimacy to mobilize these resources directly has created never-ending tensions around the EU budget between Member States that are net contributors and those that are net beneficiaries, as well as the recurrent claims by the former to so-called ‘rebates’ (first of all for the UK – while it was still a Member State – and thereafter for such net contributors as Austria, Denmark, Germany, the Netherlands, and Sweden).21 The last decade of crisis in the EU has only accentuated these tensions in the European system. During the Eurozone crisis, observers rightly criticized the nature and the pace of the supranational response,22 which was constrained in considerable part by the EU’s lack of autonomous fiscal capacity. The persistent reliance on intergovernmentalism, as well as the use of extra-EU sources of law to manage an obviously pan-European problem – not to mention a heavy reliance on unconventional monetary measures by the ecb – brought the legitimacy and effectiveness of the collective European response into question.
[...] The ‘constitution’ of power entails the sociopolitical emergence of mechanisms to extract and redirect (‘mobilize’) human and fiscal resources in a legitimate and compulsory fashion. Legitimate compulsory
mobilization is the crucial element in the political metabolism of a community, converting social and economic resources into work for public ends. This ‘metabolic’ function, if you will, is the essential element of any genuinely ‘constituted’ public authority. [...] In this sense, legitimate compulsory mobilization is the true sine qua non of constitutional authority.24
Regardless of the breadth of the EU regulatory powers,25 the unwillingness of Member States to equip the EU with the autonomous power to mobilize revenues in a compulsory fashion casts serious doubt on the EU’s purportedly constitutional character, at least in the most robust sense. What remains, therefore, is an EU fundamentally of a sub-constitutional, technocratic and thus ‘administrative’ character. In this state of affairs, the metabolism of the EU remains primarily in the hands of the Member States and their budgetary authorities, even as that power is now subject to regulatory constraints at the supranational level. The conditionality imposed by the EU on this power may have many variants – linked, as it often is, to financial assistance, the compliance with macroeconomic rules, green standards, or the rule of law. But despite that conditionality, the situation – in terms of the actual mobilization of resources – is not unlike the ‘pre-constitutional’ United States under the Articles of Confederation, in which the ‘confederal’ level, such as it was, remained entirely dependent on the polycentric legitimacy of its constituent states to mobilize resources on the confederation’s behalf.26
It follows that the EU’s ‘metabolic constitution’ – the manner in which resources are mobilized towards the ends of European integration – is fractured in several ways, leaving the EU, as fundamentally a form of administrative governance, unable to transcend its own socio-legal and socio-institutional limitations as such. The most fundamental limitation, discussed in the second subchapter below, flows from the disconnect between power and legitimacy in the Union, by which we mean the repeated conferral of regulatory power on European institutions, albeit without the EU enjoying the necessary democratic
2 The Fundamental Fracture between Power and Legitimacy in European Integration
As has long been recognized, it can be very disorienting trying to come to terms with the EU’s “constitutional structure … of bits and pieces”.29 The complex interplay between the scope of the EU’s power and its lagging legitimacy contributes directly to a sense of estrangement on the part of the average European citizen towards the European system. The power to mobilize resources in a compulsory fashion – most importantly, to tax – is intimately bound up with the scope of legitimacy enjoyed by the political structure in question, notably by a national legislature. Regulatory powers, by contrast, may be possessed by an entity with a lesser and more derivative legitimacy, such as a technocratic agency within the limits provided by the principle of legality. In short, different degrees of legitimacy support different kinds of power. We can call this the
No less than in any other system, that power-legitimacy nexus defines the scope of power that the EU can successfully exercise. The bases of legitimacy in the EU are, variously, national-executive (the European Council and the Council), technocratic (the Commission and the ecb) and juristocratic (the Court of Justice). Moreover, the EU’s ‘legislature’ (European Parliament and Council), such as it is, may inject an electoral component into the system, either directly or indirectly, but that ‘legislature’ lacks the autonomous power and legitimacy to extract and redirect fiscal and human resources on a societal scale akin to a national parliament.31 This crucial feature of the European system points us towards the ambiguous and incomplete ‘constitutionalism’ in EU public law.32 European supranationalism undoubtedly reflects the constraining type of constitutionalism, for example in the separation of powers or the protection of rights as well as in the use of various kinds of conditionality mechanisms. But EU public law falls short of constitutionalism in the most robust sense, i.e. the legitimate-compulsory mobilization of resources separate and apart from the Member States.
This is hardly to say that the constraining activity of EU institutions is without value. Indeed, the opposite is true: the EU acts as a crucial agent of peaceful cooperation and coordination, seeking to ensure that the Member States fulfil their myriad legal and political commitments to each other. “For this reason, as a matter of functional necessity, the EU must operate with a degree of autonomy from direct member-state control (although not from member-state legitimation)”.33 But in pursuing this essential function, the EU lacks a robustly constituted power, precisely because the EU does not (as yet) possess
In this way, the EU is ‘parasitic’ on the democratic and constitutional authority on the national level.36 Thus, when national democracies suffer from constitutional retrogression or are under populist attack or risk a serious economic downturn, the EU is also affected in its ability to deliver. Since the 1990s, the increasing globalization of economies and the interdependence among legal systems have combined with other challenges – from climate change to migration, terrorism, and health emergencies – to demand forms of governance beyond the nation-state. In the case of the EU, these challenges have further amplified both the functional demands for ‘more Europe’ as well as the gap between the EU’s needed powers and its lagging legitimacy. Not only is the legal basis for the exercise of EU authority often contested, but the EU is also unable to mobilize the needed resources in a compulsory and legitimate manner to support that authority even when it is legally determined to exist. Although the EU is often, functionally and even legally, the most apt level to act, it nonetheless cannot provide the fiscal and human lifeblood to the response. By contrast, national political communities, while equipped with the democratic and constitutional legitimacy to mobilize resources, are often functionally limited in what they can achieve alone and therefore must coordinate through the EU in order to address problems effectively.37
The challenge, therefore, is to bridge this fundamental disconnect between the two levels of governance in the EU – robustly democratic and constitutional at the national level, primarily administrative, technocratic and juristocratic at the supranational level. Both are essential to addressing the myriad challenges that Europe has faced over the last decade – from the Eurozone crisis, to the climate emergency, to the coronavirus pandemic. From the perspective
If one were to translate this point into the terms of Dani Rodrik’s famous ‘political trilemma of the world economy’,39 the challenge in the EU context becomes clearer. Rodrik’s model tells us why, as between maintaining national sovereignty, preserving democratic politics, and pursuing deep economic integration, “we can combine any two of the three, but never have all three simultaneously and in full”.40 Considerable nuance is necessary, however, to apply this model to the EU case. Most importantly, one needs to reconcile integration’s extensive delegation of regulatory power to the supranational level with the retention of legitimate-compulsory mobilization powers by national parliaments. The best way to do so, we suggest, is through an appreciation of the aforementioned power-legitimacy nexus,41 as well as how this nexus has shaped the balance between democracy, sovereignty, and economic integration in the EU context.
Rodrik’s trilemma applied to European integration
The EU operates primarily along the left prong of Rodrik’s model, through the delegation of regulatory power to supranational ‘pre-commitment’ institutions, both technocratic (e.g. the Commission or the ecb) as well as juristocratic (the cjeu). The very purpose of these institutions is to police the member states’ fulfillment of their legal commitments to each other in the treaties (hence mobilizing national sovereignty in service of deep economic integration). Because the EU’s ability to achieve autonomous democratic and constitutional legitimacy is limited (alas, the ever-present ‘no-demos problem’), it cannot combine supranationalized democratic politics and deep economic integration as it aspires to do (the right prong of the model). In the end, the necessary reconciliation of supranational regulatory power and national democratic and constitutional legitimacy must occur along the bottom branch of the trilemma, albeit with some adjustments not properly accounted for in Rodrik’s original. These include constitutional limits on the scope of power delegable to the EU level (particularly in terms of resource mobilization); nationally-mediated oversight (executive, legislative and judicial) of powers otherwise delegable to the EU; as well as transparency, participation and reason-giving obligations at the EU level in order to reduce information costs to such nationally-based oversight.43
3 The Multilevel Impact of the Democratic Disconnect in and after the Eurozone Crisis
Europe’s experience with the global financial crisis, and more particularly with the Eurozone crisis, manifested this socio-political and socio-cultural challenge quite well. The Eurozone crisis was defined by two inter-related impacts operating in parallel: on the one hand, the sense of power-legitimacy fracture deepened at EU level; on the other hand, the response to the crisis brought the nexus between power and legitimacy at the national level into question as well. We will take each of these parallel effects in turn.
3.1 The Eurozone Crisis and the Deepening Sense of Power-Legitimacy Fracture at EU Level
Confronted by a risk of collapse of some Member State economies (and hence, potentially, of the emu as a whole), the EU was in desperate need of an immediate common response to the debt crisis that erupted in 2010. Aside from not having enough resources of its own to deal with the situation credibly, the EU also faced legal obstacles to a proper deployment of support and assistance. Articles 123 and 125 tfeu, as is well known, prevented two potentially helpful responses: on the one hand, the ecb was barred from providing financial assistance to Member States through direct purchase of government bonds; on the other hand, the Union itself was prohibited from “assum[ing] the commitments of central governments, regional, local or other public authorities [...]”. Despite these restrictions, EU institutions and the Member States were very creative in developing work-arounds in order to save the euro. At the very early stages of the Eurozone crisis, the EU established a temporary fund, the European Financial Stabilisation Mechanism (efsm), to provide emergency lending of up to 60 billion euro, backed by an implicit guarantee in the EU
The esm uses the combined capital contributions of the Member States as backing for the issuance of bonds, the proceeds of which are then loaned, at politically determined rates but subject to strict conditionality, to Member States that otherwise have lost access to the credit markets. Concerns about whether this fund might violate the ‘no bailout clause’ (Article 125 tfeu) were addressed in 2011 through an amendment to Article 136 tfeu, allowing the Eurozone countries to “establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole” and to grant financial assistance under strict conditionality.45 The Pringle judgment of the Court of Justice in 2012 provided an interpretation of the esm and the Article 136.3 tfeu amendment in compliance with EU law.46 In doing so, the Court upheld the validity of this legal by-product of the Eurozone crisis, even though it still operated primarily outside the EU legal framework.
Beyond the esm, the other major vehicle to address the deepening Eurozone crisis was of course the European Central Bank. In an unprecedented attempt ‘to save the euro’, the ecb effectively reinvented its role through a series of unconventional monetary operations – the Securities Market Programme (smp), the Outright Monetary Transactions (omt) programme (whose mere announcement had been enough to calm the markets), and the various efforts at quantitative easing (qe) at mid-decade, notably including the Public
Other funds and instruments backed by capital contributions from the Member States have also played a key role in addressing the crisis. For example, the European Investment Bank (eib), a body collectively owned by the Member States, was at various points activated during the crisis in order to help stimulate growth.51 Nationally-mobilized resources also provided the necessary start-up funding to the Single Resolution Fund (srf), a key component of the Single Resolution Mechanism (srm) within the European Banking Union.52 The srf is being gradually built up based on contributions from
3.2 The Eurozone Crisis and the Growing Power-Legitimacy Fracture in the Member States
The second key dimension of the European response to the Eurozone crisis consisted of intensified supranational surveillance as well as deeper coordination of Member-State fiscal and macroeconomic policies. At first glance, supranational regulatory authority in this domain seems modest – just the power to coordinate national policies. However, the Eurozone crisis led creditor states
The surveillance created by this regime can be understood as an extension and intensification of the ‘pre-commitment’ system traditionally at the heart of European integration. The Member States have once again agreed to delegate authority to supranational agents to police their mutual legal commitments – in this case regarding fiscal discipline. But the enforcement of pre-commitments, i.e. the medium-term budgetary objective and the level of deficit and debt promised, “can often be intrusive and painful, in seeming derogation of sovereignty”.58 The so-called European and National Semesters operate according to a pre-defined schedule, regardless of national occurrences (e.g. governmental crisis, elections, etc.). Perhaps more importantly, in substance, the economic policy animating the system – based on fiscal rigour and austerity – is often experienced as a diktat from northern to southern countries, which in turn shapes the metabolic constitution both of the Member States as well as that of the EU (given its ‘parasitic’ nature).
As a consequence, the implementation of this regime of fiscal surveillance has a political and legal impact that is much more pervasive than mere coordination of domestic policies or mere policing of Member-State respect of their legal pre-commitments. For some Member States, the experience of this regime has been much more constraining than for others, particularly for those
Relatedly, beyond the European and National Semesters, conditionality mechanisms have been established with regard to the Member States’ compliance with the new Eurozone fiscal rules in the use of cohesion funds. The relevant disbursement from the EU budget is made conditional on the observance of the reinforced Stability and Growth Pact. Following the 2013 amendments to the Common Provisions Regulation,60 in addition to ex ante conditionality imposed on the receipt of money from the structural and investment funds, ex post macroeconomic conditionality has also been introduced. In particular, a suspension of cohesion fund payments can be triggered when a Member State either fails to take appropriate action in relation with the excessive macroeconomic imbalance procedure or does not implement the corrections envisaged in the excessive deficit procedure.61 The use of the EU budget is now more closely linked to national fiscal choices but in a way that constrains and potentially impairs the ability of the Member States to exercise its fiscal powers as it sees fit.
The result has been to cast doubt on the autonomy of domestic metabolic constitutions, an impact even greater for those countries that have received financial assistance from the esm, under strict conditionality and subject to the additional supervision by the Troika. In programme countries, the capacity of national lawmakers to enact redistributive policies at domestic level has been severely constrained,62 through a system that many critics perceive to be
From this perspective, the distortions introduced by this regime, taken to their logical extreme in programme countries, go well beyond the usual strengthening of national executives, typically understood as one of the key effects of the integration process.64 No single parliament is able effectively to scrutinize the intergovernmental bodies essential to this regime – the European Council, the Euro Summit, the Ecofin Council and the Eurogroup – much less a technocratic body like the Troika, comprised of representatives from the Commission, the ecb and the International Monetary Fund. Moreover, whatever rights the national parliaments may possess vis-à-vis their own finance minister or head of state or government, the collegial nature of decision-making of intergovernmental bodies generally places them beyond the reach of a particular national parliament. The only exceptions, of course, are certain privileged national parliaments in creditor countries that have successfully asserted their democratic rights in this regime. Consider, for example, the case of the national parliamentary oversight of the third rescue package to Greece between July and August 2015. After the Eurogroup had agreed on it, the package could not proceed unless approved by the Austrian, Finnish and German parliaments, as required by domestic constitutional law.65 In this way, the rights of these parliaments were unimpaired, thus allowing them to pass on the financial assistance to Greece, while the Greek parliament found itself subject to constraints in a Memorandum of Understanding (MoU) over which it had little advance input. This suggests serious asymmetries among Eurozone countries and their influence over resource mobilization in what is meant to be an optimal currency area.66
However, the rights of national parliaments as between debtor and creditor countries remained symmetrical in one crucial respect. Given the EU’s inability to mobilize resources of its own, as well as the insistence of the creditor states that they would only provide assistance through loans subject to strict
This reality perhaps explains why, in the fiscal surveillance regime applicable even to non-programme countries, the Commission generally restricts itself to recommendations and opinions but, together with the Council, goes to great lengths to avoid using the sanctioning power that it (in theory) possesses against non-compliant Member States. Indeed, no sanctions have ever been imposed; moreover, since 2015 the European Commission has made ‘flexibility’68 the new mantra in the implementation of the revised fiscal and macroeconomic rules, which has had the effect of frequently authorizing national deviation from the medium-term budgetary objectives (also under circumstances that did not appear exceptional, temporary and unforeseeable). In this regard, Turkuler Isiksel has noted a persistent tension between the effort to
4 Will the Coronavirus Pandemic Response Serve as a ‘Critical Juncture’ in the Transformation of the EU’s Metabolic Constitution?
With the World Health Organization declaring a global pandemic on 11 March 2020, and with the growing number of infections and deaths throughout Europe, the Covid-19 crisis became the most serious challenge for the EU and its Member States since the Second World War. The arrival of the coronavirus pandemic acted as a sort of institutional and political earthquake. The re-imposition of border controls, along with the fact that many Member States were understandably focused on the internal impact of the crisis and thus seemingly insensitive to the needs of a pan-European response, all helped to raise questions about the unity and integrity of the EU. And yet, due to its “borderless nature, Covid-19 [became] a matter of common European interest since its first detection on the continent”.70
A major obstacle to an effective response, however, was Europe’s fractured metabolic constitution, in which wealthier and more financially secure Member States were in a much better position to mobilize the resources needed to address the crisis, both in terms of public health and economic response. One of the first steps the EU took, lacking resources of its own, was to temporarily free the Member States from EU fiscal constraints by activating the general ‘escape clause’ in budgetary surveillance regime.71 Similarly, in the area of state aids, the Commission also announced the relaxation of a
Given these pressures, the question arose whether, in effect, the EU’s fractured metabolic constitution – dependent as it has always been on nationally mobilized resources – now faced what French President Emmanuel Macron called a ‘moment of truth’,74 or what academics often call a ‘critical juncture’.75 By this is meant the confluence of profoundly demanding social and political circumstances that can radically undermine existing institutional settlements, thus overcoming the natural lags that favour those settlements (‘hysteresis’), thereby opening the way for genuinely new institutional configurations.76 In the early months of the coronavirus pandemic, however, there was no telling what kind of Europe might emerge. In this first stage of the pandemic response, as with the Eurozone crisis before it, the ecb necessarily provided the most important supranational input. The ecb announced an ambitious asset purchase programme, the Pandemic Emergency Purchase Programme (pepp), to mobilize up to 750 billion euro in Eurozone assets and debt instruments: a very important signal for the financial markets. (The ecb later increased pepp
What emerged out of the negotiations over the next several weeks, culminating in the announcement of the Next Generation EU (ngeu) recovery and resilience facility in July 2020, was undoubtedly a major achievement. The historic innovation – a ‘Eurobond’ in all but name – was the use of the mff as a temporary instrument of common borrowing and macroeconomic stabilization. Nonetheless, it is important not to exaggerate too much the impact of the agreement on the EU’s metabolic constitution. The increased borrowing is, at this stage, still envisioned as temporary and in any case ultimately backed by the fiscal mobilization capacities of the Member States severally, through their proportional obligations to the mff. No doubt, ngeu contemplates a series of new taxes (for example, on digital technology and single-use plastics) to join customs duties and a portion of vat as part of the EU’s own resources. But if and when they are in fact adopted, they will still need to be imposed and collected nationally, per the requirements of Article 311 tfeu. Indeed, in some countries (e.g. Austria and Germany), the national-parliamentary approval for these levies may require qualified majorities, the same needed to amend their respective Constitutions.79 Thus, in terms of the EU’s metabolic constitution, Next Generation EU still did not cross the crucial Rubicon, that of a proposed Europeanization of taxation authority to accompany the increased borrowing under the mff. The financial underpinnings of the new recovery fund would still be entirely in keeping with how the Member States financed the response to the Eurozone crisis over the prior decade – ultimately through their own fiscal capacities, whether directly or indirectly.
This raises an interesting philosophical question, as one commentator quickly noted after the deal was announced: “whether … the EU can initiate sovereign fiscal capacity through public debt alone? Or does it also require tax revenue raising capacity?”83 Eventually, no doubt, any EU borrowing beyond the short-term and limited scale of Next Generation EU will need to be accompanied by autonomous taxing authority, which in turn would require treaty change. And, as this commentator rightly noted, any change of that magnitude would lay the groundwork for considerable political conflict in the future. Other commentators were more sanguine, seeing Next Generation EU as a vehicle for “reshap[ing] the EU’s political economy”: because “what can be done once can be done again”, this means that national leaders “have boarded the train towards more common taxation and cannot get off and turn back”.84
Time will tell. To turn this temporary instrument into a permanent feature of European political economy (shifting responsibility to macroeconomic stabilization to the EU, combined with authority to raise taxes) would indeed require a quite fundamental treaty change, something for which there clearly
Conclusion: Taking Stock of Where We Are
Europe thus finds itself at a pivotal moment, potentially on the cusp of a genuine constitutional transformation but not there yet, at least not until the EU gains taxing authority in its own right to support increased borrowing capacity. There has been considerable debate over whether common borrowing, combined with distribution by grants, marks the arrival of a ‘Hamiltonian moment’ in the EU, though on this point, the sceptics have the better of the argument.86
It is precisely for this reason that Hjalte Lokdam and Michael A. Wilkinson are right to be sceptical of Mario Draghi’s functionalist invocation of, in effect, a technocratic and juristocratic (i.e. administrative) potentia as a sufficient basis of governing legitimacy in Europe going forward. We have, in fact, been around this block many times before, stretching all the way back to the earliest years of the integration process in the post-war decades. For many advocates of European integration in the late 1940s and early 1950s, the seeming example of technocratic independence under the New Deal offered a justification for the delegation of regulatory power to autonomous supranational bodies. The New Deal represented, from this perspective, the triumph of functionalist governance – that is, governance that evolved as a function of the problems it sought to address, rather than being determined by seemingly outdated constitutional categories (‘separation of powers’ in the purported case of the New Deal, ‘national sovereignty’ in European integration). The irony, of course, was that Roosevelt’s New Deal was much less receptive, both in principle and practice,
Contrary to expectations of functionalist (and later so-called neofunctionalist) theorists, European supranationalism did not evolve merely as a consequence of functional demands for technocratic independence. Rather, two additional dimensions of change also proved decisive: the political – or the defense of existing institutional advantages and/or the struggle to realize new ones –; and the cultural – or the mobilization of conceptions of ‘right’ or legitimate governance in the face of purported functional and political pressures for change. As a consequence of the interplay of all three dimensions – functional, political, and cultural – European integration ultimately settled on a form of governance in which the political oversight and control of national executives played a decisive role, a feature of European supranationalism that persists to this day. However, over the last several decades, this mediated legitimation through national executive oversight has been supplemented by national parliamentary and national judicial oversight – the other two crucial elements of the ‘post-war constitutional settlement of administrative governance’.90 It was only through all three forms of mediated legitimacy that the post-war constitutional settlement allowed Europe to reconcile the functional demands of administrative governance with the political and cultural requirements of democracy and constitutionalism, thus surmounting what Carl Schmitt had claimed was ‘insurmountable’.91
In the atmosphere of crisis over the last decade, however, this necessity of mediated legitimation through national bodies has deeply complicated European governance, given the needs to extensive resource mobilization to address the various crises. Europe thus faces a choice, It can either continue the authoritarian dérive described by Hjalte Lokdam and Michael
This leads us to close, then, like both Francesco Martucci and Hjalte Lokdam and Michael A. Wilkinson, on a (very) cautiously optimistic note. For Martucci, the Covid-19 crisis has had the potential of liberating European politics from the “carcan de la règle”, indeed perhaps even giving rise, via ngeu, to “un centre de décision pour la politique économique prévue par le plan Werner”. For Hjalte Lokdam and Michael A. Wilkinson, the pandemic response “has created the possibility for Eurozone-wide programmes that potentially point in a different ideological direction, towards more socially inclined ends”. We would argue, in a similar vein, that the pandemic response also contains within it the potential seed of a genuinely metabolic constitution at the EU level. The common borrowing in the ngeu creates tangible incentives to ensure debt sustainability through greater coordination of national tax legislation. For the foreseeable future, this coordination will remain under the rubric of the ‘own resources’ decision adopted under Article 311 tfeu (requiring unanimity in the Council, mere consultation of the ep, and entry into force only upon the approval of the member states according to domestic constitutional requirements). Nonetheless, the obvious functional advantages of common borrowing may be sufficiently powerful enough to facilitate, over time, a de facto fiscal mobilization capacity in the EU that is much less fragmented among the Member States than it is today.
With that capacity, moreover, could come a kind of polity-building power that reaches well beyond the sort of technocratic and juristocratic ‘pre-commitment’ authority that has underpinned European integration up to this point. That, at least, is the ultimate potential of the ‘rule-of-law conditionality’ that the EU25 have sought to impose on Hungary and Poland in conjunction
Has the Court opted for the same approach here? The cjeu was under enormous political pressure from the EU25 as well as the ep to do so, given the cultural demand for rule-of-law conditionality in the distribution of the EU own resources, including the ngeu proceeds. In its judgments of 16 February 2022 on cases C-156/21 and C-157/21 (not yet reported), the cjeu (full court)
Note on the Text and Acknowledgments
The present discussion draws from C. Fasone and P. L. Lindseth, « Europe’s Fractured Metabolic Constitution: From the Eurozone Crisis to the Coronavirus Response », luiss School of Government, sog Working Paper, n°61/2020 (October 2020, available at:
See supra in this volume, F. Martucci, « Les racines historiques et théoriques de l’Union économique et monétaire ».
See supra in this volume, H. Lokdam & M. A. Wilkinson, « The European Economic Constitution in Crisis : A Conservative Transformation ? ».
See supra in this volume, F. Martucci, « Les racines historiques et théoriques de l’Union économique et monétaire », Subchapter 2.2.
Ed.: regarding the question of “authoritarian liberalism”, see also supra in this volume, Section 2 – The (Neo)Liberal Recapture of the Concept, and esp. W. Bonefeld, « Economic Constitution and Authoritarian Liberalism – Carl Schmitt and the idea of a “Sound Economy” » and the discussions by S. Audier (« Le néolibéralisme : Un “libéralisme autoritaire” néo-schmittien ? ») and V. Valentin (« L’idée de constitution économique et l’hypothèse du libéralisme autoritaire »).
Ed.: concerning the evolution of economic constitutionalism in the (neo)liberal discourse, see supra in this volume, T. Biebricher, « An Economic Constitution – Neoliberal Lineages ».
Ed.: see infra in this volume, T. Biscahie & S. Gill, « Three Dialectics of Global Governance and the Future of New Constitutionalism ».
Ed.: in the introduction (supra in this volume, G. Grégoire & X. Miny, « Introduction – La Constitution économique : Approche contextuelle et perspectives interdisciplinaires »), we (Editors) share this view when we describe the EU’s ‘constitutional’ rhetoric as ‘catachrèse’ (catachresis), i.e. an “improper use of words; application of a term to a thing which it does not properly denote; abuse or perversion of a trope or metaphor” (Oxford English Dictionary).
See A. E. Stie, Democratic Decision-Making in the EU: Technocracy in Disguise?, Abingdon, Routledge, 2012. For earlier formulations of this administrative/technocratic perspective, see P. L. Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State, Oxford, Oxford University Press, 2010; P. L. Lindseth, « Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community », Columbia Law Review, 1999, vol. 99, n°3, pp. 628–738. See also, more recently with regard to the EP, P. L. Lindseth, « Executives, Legislatures and the Semantics of EU Public Law: A Pandemic-Inflected Perspective », in D. Fromage and A. Herranz-Surrallés (eds.), Executive-Legislative (Im)balance in the European Union, Oxford, Hart Publishing 2021, pp. 303–327.
For further theoretical background on the role of ‘pre-commitment’ in governance beyond the state, see P. L. Lindseth, « Theorizing Backlash: Supranational Governance and International Investment Law and Arbitration in Comparative Perspective », Journal of World Investment and Trade, 2020, vol. 21, n°1, pp. 34–70.
See P. L. Lindseth, « The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s », Yale Law Journal 2004, vol. 113, n°7, pp. 1341–1415.
On this concept, see, e.g., K. Tuori, European Constitutionalism, Cambridge, Cambridge University Press, 2015, p. 42. For further exploration of the concept, see generally P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism. Review of K. Tuori, European Constitutionalism (Cambridge University Press, 2015) », European Law Journal, 2016, vol. 22, n° 5, pp. 696‑718.
ecj, 23 April 1986, Parti écologiste ‘Les Verts’ v European Parliament, Case 294/83 (ecli:eu:c:1986:166), para 23.
This is particularly the case with regard to so-called ‘rule of law backsliding’. See, e.g., D. Kochenov and L. Pech, « Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality », European Constitutional Law Review, 2015, vol. 11, n°3, pp. 512–540. See also J. Komárek (ed.), The EU Constitutional Imagination: Between Ideology and Utopia, Oxford, Oxford University Press, forthcoming.
See R. Schütze, « Constitutionalism », in R. Masterman and R. Schütze (eds.), The Cambridge Companion to Comparative Constitutional Law, Cambridge, Cambridge University Press, 2019, pp. 40–66.
M. Poiares Maduro, « Passion and Reason in European Integration », FCE 3/10 Forum Constitutionis Europae (Humboldt University, Walter Hallstein-Institut Für Europäisches Verfassungsrecht 2010), p. 6.
R. Bellamy, A republican Europe of states. Cosmopolitanism, intergovernmentalism and democracy in the EU, Cambridge, Cambridge University Press 2019, pp. 174–208. Ed.: the project of a Europe of peace through economic integration (and the resulting balance of power) can already be found in the past, notably in the theories of the French Physiocrats of the 18th century (see supra in this volume, P. Steiner, « Les Physiocrates, l’économie politique, l’Europe »).
P. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », in G. Davies and M. Avbelj (eds.), Research handbook on legal pluralism and EU law, Cheltenham (UK)/Northampton (MA), Edward Elgar, 2018, pp. 223–242, esp. p. 227.
N. Scicluna, « Politicization without democratization: How the Eurozone crisis is transforming EU law and politics », International Journal of Constitutional Law, 2014, vol. 12, n°3, pp. 545–571, esp. pp. 562 ff.
Article 3 of Council Decision 2014/335 on the Union’s own resources.
C. Fasone and N. Lupo, « The Union Budget and the Budgetary Procedure », in R. Schütze and T. Tridimas (eds.), Oxford Principles of European Union Law, Vol. I, Oxford, Oxford University Press, 2018, pp. 809 ff., esp. pp. 814–816.
R. Crowe, « The European Budgetary Galaxy », European Constitutional Law Review, 2017, vol. 13, n°3, pp. 428–452, esp. pp. 432–433.
M. Dawson and F. De Witte, « Constitutional Balance in the EU after the Euro‐Crisis », Modern Law Review, 2013, vol. 76, n°5, pp. 817–844; A. Menéndez, « The Existential Crisis of the European Union », German Law Journal, 2013, vol. 14, n°5, pp. 453–526.
See A. Verdun, « An “Asymmetrical” Economic and Monetary Union in the EU: Perceptions of Monetary Authorities and Social Partners », Journal of European Integration, 1996, vol. 20, n°1, pp. 59–81.
P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 223.
See, amongst many, G. Majone, Regulating Europe, London/New York, Routledge, 1996, pp. 47–80 and pp. 265–301.
See T. Wozniakowski, « Why the sovereign debt crisis could lead to a federal fiscal union: the paradoxical origins of fiscalization in the United States and insights for the European Union », Journal of European Public Policy, 2018, vol. 25, n°4, pp. 630–649, esp. p. 631.
P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », in F. Bignami (ed.), EU Law in Populist Times. Crises and Prospects, Cambridge, Cambridge University Press 2019, pp. 505–530, esp. pp. 508–510.
See G. Capoccia, « Critical Junctures and Institutional Change », in J. Mahoney and K. Thelen (eds.), Advances in Comparative-Historical Analysis, Cambridge, Cambridge University Press 2015, pp. 147–179.
D. Curtin, « The Constitutional Structure of the Union: A Europe of Bits and Pieces », Common Market Law Review, 1993, vol. 30, n°1, pp. 17–69.
P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 235; V. A. Schmidt, Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone, Oxford, Oxford University Press 2020, pp. 57–66, who talks of a ‘split-level legitimacy’.
See P. Lindseth, « Executives, Legislatures, and the Semantics of EU Public Law», op. cit.
Not to mention that EU public powers are often exercised by or together with private actors: See A. Vauchez, « In Search of Europe’s Phantom Public. “Public-ness” and the European Union », German Law Journal, 2020, vol. 21, n°1, pp. 46–50. For more details on the ambiguous and incomplete ‘constitutionalism’ in the EU, see P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism », op. cit.
P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 236.
Of course, it also lacks constituent power on its own, though it has been argued that the EU enjoys a pouvoir constituant mixte: see J. Habermas, « Citizen and State Equality in a Supranational Political Community: Degressive Proportionality and the Pouvoir Constituant Mixte », Journal of Common Market Studies, 2017, vol. 55, n°2, pp. 171–182.
Ed.: see also infra in this volume, C. Joerges, « Economic Constitutionalism and “The Political” of “The Economic” ».
On this concept, see, e.g., K. Tuori, European Constitutionalism, op. cit., p. 42.
See P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 240.
P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., p. 522–525.
For a succinct overview of that trilemma, see D. Rodrik, « The Inescapable Trilemma of the World Economy » (Dani Rodrik’s weblog, 27 June 2007), available at:
Ibid.
See the passage above accompanying note 30.
See P. L. Lindseth, Power and Legitimacy, op. cit.
See generally P. L. Lindseth, Power and Legitimacy, op. cit.
Council Regulation 407/2010 of 11 May 2010 establishing a European Financial Stabilisation Mechanism. The first rescue programme to Greece in 2010 was also partly financed through bilateral loans by Member States. See C. Kilpatrick, « Are the Bailouts Immune to EU Social Challenge Because They Are Not EU Law? », European Constitutional Law Review, 2014, vol. 10, n°3, pp. 393–421, esp. pp. 398 ff.
European Council Decision 2011/199 of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro.
ecj, 27 November 2012, Thomas Pringle v Government of Ireland and Others, Case C-370/12 (ecli:eu:c:2012:756). See T. Beukers and B. de Witte, « The Court of Justice approves the creation of the European Stability Mechanism: Pringle », Common Market Law Review, 2013, Vol. 50, n° 3, pp. 805–848; A. Hinarejos, « The Court of Justice of the EU and the Legality of the European Stability Mechanism », Cambridge Law Journal, 2013, vol. 72, n°2, pp. 237–240.
ecj, 16 June 2015, Peter Gauweiler and Others v Deutscher Bundestag, Case C-62/14 (ecli:eu:c:2015:400); ecj, 11 December 2018, Heinrich Weiss and Others, Case C-493/17 (ecli:eu:c:2018:1000).
See M. Dawson, A. Maricut and A. Bobic, « Reconciling Independence and accountability at the European Central Bank: The False Promise of Proceduralism », European Law Journal, 2019, vol. 25, pp. 75–93, esp. pp. 79 ff.
BVerfG, 5 May 2020, pspp, 2 BvR 859/15 (ecli:de:bVerfG:2020:rs20200505.2bvr085915).
P. Lindseth, « Power and Legitimacy in the Eurozone: Can Integration and Democracy Be Reconciled? », in M. Adams, F. Fabbrini and P. Larouche (eds.), The Constitutionalization of European Budgetary Constraints, Oxford, Hart Publishing, 2014, pp. 379 – 398, esp. pp. 392–393 and V. A. Schmidt, Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone, op. cit., pp. 150–170.
See the so-called ‘Juncker Plan’ and the European Parliament and Council Regulation 2015/1017, On the European Fund for Strategic Investments, the European Investment Advisory Hub and the European Investment Project Portal and Amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013.
N. Xanthoulis, « Single Resolution Fund and Emergency Liquidity Assistance: Status Quo and Reform Perspectives On Emergency Financial Support in the Banking Union », in G. Lo Schiavo (ed.), The European Banking Union and the Role of Law, Cheltenham (UK)/Northampton (MA), Edward Elgar, 2019, pp. 273–294.
See generally « Single Resolution Mechanism- Consilium », European Council website, available at:
P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., p. 516.The use of the esm to further supplement the srf, if needed, has been repeatedly proposed since the Euro Summit Meeting of 29 June 2018, available at:
« ECB’s Draghi Renews Plea for Euro Area Deposit Insurance », Reuters, 9 July 2018, available at:
J. Carmassi, S. Dobkowitz, J. Evrard, L. Parisi, A. Silva and M. Wedow, « Completing the Banking Union with a European Deposit Insurance Scheme: Who Is Afraid of Cross-Subsidisation? », Occasional Paper Series, European Central Bank, April 2018, available at:
See, in particular, Regulation 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies and Regulation 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances (part of the so-called ‘six-pack’); Regulation 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area (part of the so-called ‘two-pack’).
P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., p. 507.
B. Bugaric, « The Populist Backlash Against Europe: Why Only Alternative Economic and Social Policies Can Stop the Rise of Populism in Europe », in F. Bignami (ed.), EU Law in Populist Times, op. cit., pp. 477–504.
See Regulation 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (ec) No 1083/2006.
C. Scheinert and C. van Lierop, Linking cohesion policy and the European Semester: Partnership and multi-level governance to boost investment and structural reforms, European Parliamentary Research Service, pe 644.208 – December 2019, p. 19.
See F. Nicoli, « Democratic Legitimacy in the Era of Fiscal Integration », Journal of European Integration, 2017, vol. 39, n°4, pp. 389–404, esp. p. 393–394.
See N. Scicluna, « Politicization without democratization: How the Eurozone crisis is transforming EU law and politics », op. cit., pp. 562 ff.
D. Curtin, « Challenging Executive Dominance in European Democracy », Modern Law Review, 2014, vol. 77, n°1, pp. 1–32, esp. pp. 2–3.
M. Moschella, « When Some Are More Equal than Others: National Parliaments and Intergovernmental Bailout Negotiations in the Eurozone », Government and Opposition, 2017, vol. 52, n°2, pp. 239–265, esp. pp. 253 ff.
C. Fasone, « Eurozone, non-Eurozone and “troubled asymmetries” among national parliaments in the EU. Why and to what extent this is of concern », Perspective on Federalism, 2014, vol. 6, n°3, pp. 1–41, esp. pp. 15 ff.
M. Markakis, Accountability in the Economic and Monetary Union. Foundations, Policy, and Governance, Oxford, Oxford University Press, 2020, pp. 85–102.
See European Commission, Communication on making the best use of flexibility within the existing rule of the Stability and Growth Pact, com (2015) 12 def., 13 January 2015; Communication on the review of the flexibility under the Stability and Growth Pact, com (2018) 335 def., 23 May 2018. On the flexibility shown by the Commission in its first assessment on the implementation of the Treaty on Stability, Economic Coordination and Governance in the Economic and Monetary Union, see European Commission Communication, The Fiscal Compact Taking Stock, C(2017) 1200 final, 21 February 2017, p. 4.
T. Isiksel, « Constitutionalism as Limitation and Licence », in T. Ginsburg, N. D. Rosen and G. Vanberg (eds.), Constitutions in Times of Financial Crisis, Cambridge, Cambridge University Press, 2019, pp. 187–203, esp. pp. 198 ff.
A. Alemanno, « Testing the Limits of EU Health Emergency Power », Verfassungsblog, 18 April 2020, available at:
See European Commission Communication on the activation of the general escape clause of the Stability and Growth Pact, Brussels, com (2020) 123 final, 20 March 2020. See also the Statement of EU Ministers of Finance on the Stability and Growth Pact in Light of the covid-19 Crisis, 23 March 2020, available at:
See European Commission, Communication on Coordinated economic response to the COVID-19 Outbreak, com (2020) 112 final, Brussels, 13 March 2020, and generally the State Aid Temporary Network:
See « The European Union Is Having a Bad Crisis », The Economist, 14 May 2020, available at:
E. Macron, « Transcript: “We Are at a Moment of Truth” (English) », Financial Times, 17 April 2020, available at:
See eg G. Capoccia, « Critical Junctures and Institutional Change », op. cit., p. 147.
For elaboration of the concepts of ‘critical juncture’ and ‘hysteresis’ in the context of the European integration, see P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., pp. 520–524.
See, ecb, Monetary Policy Decisions by the Governing Council of the ecb, Press Release, 4 June 2020, available at:
A. Tooze, « The Death of the Central Bank Myth », Foreign Policy, 13 May 2020, available at:
See L.F.M. Besselink, M. Claes, Š. Imamović and J.H. Reestman, National Constitutional Avenues for Further Integration, Study requested by the European Parliament’s Committees on Legal Affairs and on Constitutional Affairs, pe 493.046, 2014, pp. 117 and 199.
G.L. Tosato, « The Recovery Fund: Legal Issues », LUISS School of European Political Economy, Policy Brief 23/2020, 1 May 2020, p. 3, available at:
T. Stubbington and M. Arnold, « Investors hail Brussels as a new force in bond markets », Financial Times, 22 July 2020, available at:
P. Leino-Sandberg, « Who is ultra vires now? The EU’s legal U-turn in interpreting Article 310 TFEU », Verfassungsblog, 18 June 2020, available at:
A. Regan, @Aidan_Regan, 23 July 2020, 9:02 am edt, available at:
M. Sandbu, « EU crosses the Rubicon with its emergency recovery fund », Financial Times, 22 July 2020.
P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism », op. cit., p. 701. Indeed, as Lokdam and Wilkinson point out, this contradiction was explicitly designed into the Maastricht Treaty, even if its full implications were not acknowledged: “As Karl Otto Pöhl, then president of the Deutsche Bundesbank, put it in the context of the Maastricht negotiations: emu would ‘necessitate the surrender of sovereignty by the individual member states, but this need not mean corresponding gains in Community authority’”. This gave rise to what Martucci calls the ‘fundamental asymmetry’ at the heart of emu, between a supranationalized monetary policy and (in principle) still-nationalized economic policy.
As Wofgang Münchau (@EuroBriefing) tweeted soon after the Macron-Merkel agreement on joint debt in May 2020: “A useful first step, but please spare us all this Hamilton nonsense” (9:02 cet, 19 May 2020), available at:
See generally M.M. Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State, Oxford University Press, 2003; see also P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit.
Again, see the passage above accompanying note 30.
This story is recounted in detail in P. L. Lindseth, « Transatlantic Functionalism: New Deal Models and European Integration », Critical Analysis of Law, vol. 2, n°1, 2015, pp.83–105.
See generally P. L. Lindseth, Power and Legitimacy, op. cit.
C. Schmitt, « Vergleichender Überblick über die neueste Entwicklung des Problems der gesetzgeberischen Ermächtigungen (Legislative Delegationen) », Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1936, vol. 6, pp. 252–268, esp. p. 257. For further discussion, see P.L. Lindseth, Power and Legitimacy, op. cit., pp. 89–90. Ed.: see also supra in this volume, P.C. Caldwell, « The Concept and Politics of the Economic Constitution ».
P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit.
See generally P. L. Lindseth and C. Fasone, « Rule-of-Law Conditionality and Resource Mobilization – the Foundations of a Genuinely “Constitutional” EU? », Verfassungsblog 11 December 2020, available at:
Council of the EU, Opinion of the Legal Service dated 25 October 2018 on the Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalized deficiencies as regards the rule of law in the Member States- Compatibility with the EU Treaties (2018), 2018/0136(cod), available at:
Joint Declaration of the Prime Minister of Poland and the Prime Minister of Hungary, About Hungary, 26 November 2020, available at:
See K. Scheppele, L. Pech and D. Kelemen, « Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism », Verfassungsblog, 12 November 2018, available at:
ecj, Judgment of 5 February 1963, van Gend en Loos, Case 26/62 (eu:c:1963:1), 1963 e.c.r. 1.
See generally P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism », op. cit.