Saving Europe – The revolutionary effect of constitutional rights norms

Wesemann, Anne (2019). Saving Europe – The revolutionary effect of constitutional rights norms. In: 29th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), 07/07/19-13/07/19, University of Lucerne, Lucerne.

URL: https://www.ivr2019.org/

Abstract

Codified constitutional frameworks, with the European Union's (EU) arguably is being one, are notoriously rigid and consequently struggle to respond to societal changes in a timely manner. This paper will argue this to be a false assumption based on overly positivist understandings of norm structures.

Instead of following such approach, the paper will propose that following Robert Alexy’s legal philosophy in general and the constitutional rights theory in particular, enables us to redefine constitutionalism at EU level. While constitutional analysis tends to focus on the supranational and intergovernmental structures within the EU, the paper will focus on the analysis of norm structures and functionalities to show the constitutional character of these legal frameworks.

This paper will propose that particular norms within the Treaty on the Functioning of the EU (TFEU) are constitutional rights norms. As such these norms are open-textured, allowing rights and interests enshrined in these norms to be balanced where collisions of norms arises. In addition, the radiating effect of these provisions gives constitutional relevance to secondary legislation, which is of particularly relevance in the context of EU regulations and directives. These legal texts can entail derivative constitutional rights norms, allowing the constitutional structures of the EU to widen and be more adaptable to societal needs and pressures, while simultanously providing the constitutional rigidity and reliablity needed.

The paper particularly focusses on EU citizenship as exemplar constitutional rights norms within the EU legal framework presenting the norm structure of Articles 20 and 21 TFEU as constitutional principle. The CJEU reasoning in EU citizenship cases such as Rottmann, Zambrano and Lounes, will be used as evidence of the existence of relevant constitutional right norm characteristics.

In doing so, the constitutional relevance of EU citizenship will be shown while also arguing for a more open understanding of constitutional norms as facilitators of change without constitutional crisis.

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