European and National Constitutional Law
Full course description
This master course is a compulsory course in the public law track of the European Law School (ELS) Master Programme and an elective for students in the other tracks of ELS as well as those participating in the Master Programs Globalization and Law, International Laws, and Nederland Recht (Dutch Law). The course focuses on the relationship between EU law and domestic constitutional law in a comparative setting.
We will seek to discuss and analyze questions such as: how does multi-layered decision-making take place? How has national constitutional law evolved under the influence of EU law? How may we perceive ‘European’ democracy in the light of national states and how should the concept of dual legitimacy be assessed? How have national courts been included in European integration and has this impacted upon national constitutional courts? How does the European Human Rights landscape look like? And how does the EU intervene in Member States political-institutional scenario for deficiencies in the rule of law?
The course has therefore a vertical approach (EU – Member States) as well as a horizontal perspective, looking into the impacts and practices of a few (selected) national constitutional systems. The course focuses on the present state of affairs (what are the present powers of national parliaments vis-à-vis EU law making, for instance) but also allows plenty of room to relate to recent developments and state of discussions about the optimal or desired balance between the EU and its Member States. Furthermore, we will try to include recent events and steps in the integration process or national developments, such as the elections of the European Parliament in 2019, the European Commission current composition, the Brexit, and the rule of law challenges posed by Hungary and Poland, the EU economic support after Covid-19 Pandemic and the German Constitutional Court judgment Weiss of May, 5 2020.
The aim of this course is to study national constitutional law in its relations to EU law, with their various interactions and multi-layered features. This perspective is necessary for instance to understand where and when to lobby, or to be aware how consultations and deliberations on rule- and policy-making take place. When studying substantive areas of the law one has to be increasingly aware that multi-layered rules and rule makers exist and cooperate. Thus, decision-making does not take place on one level only (be it the EU level or the Member State level) but also in collaboration between the different levels. The goal of this course is to show and analyze the present functioning of constitutional law in member states as impacted by EU law. It is therefore relevant to know who is involved in the decision-making process, the execution of the decisions.
European lawyers cannot operate without insight in the interaction of EU competences and national authorities’ powers in many domains. This goes for lawyers, judges, civil servants, lobbyists and consultants and others. All lawyers have to a lesser or larger extent to be able to navigate between different sources, actors, decision makers, lawmakers and executives and agencies.
In this seven weeks course we can go only so far in providing tools and insight in different domains of multi-layered government; it is not the purpose to investigate in detail areas such as the banking union, or competition law, or other domains of the law, but we will trace the phenomenon of multi-level government and the various ways of interaction between the EU and states and their effects on national constitutional law and the exercise of powers by national branches of government. This year we will focus on seven areas whereas it is evident the potential for cooperation (or conflict) between the EU and the Member States. We will particularly investigate the magnitude of these convergences (or clashes) and their constituent elements in the area of (1) the development of a supranational normative power and legal order; (2) the multi-level institutional structure of representative democracy in the EU; (3) the monetary union as example of integration of States through the law; (4) the establishment of an overall EU economic governance; (5) the relationship between the EU and Members States jurisdictions; (6) the human rights status of health in Europe and the trilateral relation States-EU-CoE; (7) the rule of law challenges and the threat to EU values and the EU accession/exit. These issues will also lead us into a discussion of the future of the EU; its competences, its legitimacy, its democratic foundations and developments pertinent to further integration, or towards a political union and more transparency.
It is important to note that although this course is a legal course, there is an evident relationship with politics and with societal and political discussions as to legitimacy, accountability, competences, sovereignty, division of powers and related concepts. These are legal concepts certainly, but with a prominent political substance and they relate to politics as well. Power struggles and division of powers are legally relevant but also politically, and we need therefore to have an open eye for the political context, within the EU and within the various member states. That is the political reality, as mirrored by Eurosceptic parties or declining trust in the EU project. It is necessary for lawyers to understand the EU as a legal constitutional project as well as a project which impacts on national sovereignty, national parliaments’ powers, national political parties and relations.
Students will have a thorough understanding of the interaction between EU and national constitutional law; Students will be able to measure the Europeanization of national public law and to distinguish major or minor degrees of integration in different areas; Students will acquire the capacity of arguing for a need of a greater intervention of the EU in key-areas of public law and to predict the feasibility of this intervention; Students will be able to report on the status of the EU integration and to highlight the current problems in structured and persuading formats; Students will be able to pick up the most promising arguments
This course builds upon the other preceding courses in the master European Law School, such as Advanced European Law and Fundamental Rights, and it aims to offer different perspectives in the interaction between the different levels of the multi-level system. Furthermore, we do expect all students to possess knowledge of constitutional legal concepts and of their own constitutional system and the basis functioning of the EU law. In case you have started the ELS program in the beginning of 2020 (and this course is actually one of your first courses in the master ELS program, we do recommend acquainting yourself of the necessary knowledge of (institutional) EU law. We also recommend you strongly to follow the relevant news about EU developments and relevant discussions and papers and documents. The sites of the Commission, Council, and Parliament contain extensive information on all relevant issues and topics. And possibly the same applies for the sites of parliaments and governments in your home country.
The book on all subjects of this course is still in construction and we hope to have handbook ready for February 2021. Otherwise, all the chapters will be made available on the Student Portal. For a comparative understanding of constitutional systems as to ministerial accountability, application of EU law, etc., we recommend Aalt Willem Heringa, Constitutions Compared (5th Eds., 2019).
Many of the issues are that recent and fresh that we will have to cope with policy documents and academic articles. We are aware however that new developments sometimes may go quicker than we have foreseen, so we do reserve the right to add new links and documents where necessary. We will do so through the Student Portal.
We have indicated the relevant materials on a weekly basis, mostly by inserting the link to the relevant document, article or source. When the links do not work directly, copy and paste them on your browsers. These are easily downloadable or may be found in the university library. We assume that all students prepare themselves properly by reading the prescribed materials and preparing themselves for the tutorials and for discussion.