Requirement that tribunals be established by law – European Convention on Human Rights – EU Charter of Fundamental Rights – Fair trial – Rule of law – Separation of powers – Public trust

Purse power has been a hot item throughout the Union's history and was again much fought over during the Convention and the Intergovernmental Conference. The Constitution has indeed produced a number of significant changes. What makes the subject so hot? It is not just the money. The Union's budget is no more than that of a single smaller Member State. Most of the expenses are, moreover, fixed. That the budget should be so hot is probably because fighting over money is a good test of strengths generally (with a neat and immediate outcome). This explains the role the purse has always played in constitutional history. True to the grand tradition then, as soon as the European Parliament was given powers in the matter (1975) and got directly elected (1979), it had fights over the EU budget. This was mainly a wedge to break a share for itself in the legislative process. In the years that followed, it has in fact gained more legislative than financial powers. And the Union has been kept short, not on legislative powers but on money.

Since the ratification of the Treaty of Maastricht, the ‘democratic deficit’ is used as a term to describe the democratic deficiencies of the European integration process. What is the influence of the citizens on the process of governmental and constitutional decision-making? Due to the distance between the powers of the Community and the nation state, the power of the executive over parliamentary bodies and the fact that a lot of decision-making takes place behind closed doors, greater democracy and transparency is needed.

Between 11 March and 29 October 2004, between Madrid and Rome, the European Constitution has turned from an uncertain possibility into a certain (albeit not full) reality. The day of the Madrid train bombs killing 190 and wounding 1500 is as inseparable from the history of the Constitution as the date of its signature, 29 October. Those events of 11 March (and the ensuing government blunders) moved the Spanish people to end the reign of Aznar's Popular Party. This in turn unblocked the Constitution talks that had got gripped, among other things, due to Spanish intransigence in December.

In several ways the particular sequence or succession of events from 11 March to 29 October can also be seen as symbolic for this particular European Constitution. Let us select three angles: an historic, a formal and a substantive one.

On 21 September 1792, at Danton's proposal, the French National Assembly declared that ‘there can be no constitution but one approved by the people’. In France, the idea of direct democracy dates back to the Revolution. However, due to the Terror and the practice under Napoleonic Empires, in which they were turned into plebiscites, referendums acquired a negative connotation. Under the Vth Republic, De Gaulle turned referendums into an instrument of personalisation and presidentialisation, and since his day, there have been few referendums staged. In 10 years of office, President Jacques Chirac only used it twice with much less success and political courage.

Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship

On 14 October 2004 the German Federal Constitutional Court, the Bundesverfassungsgericht, delivered a decision of principal character regarding the status of the European Convention on Human Rights (Convention) and the rulings of the European Court of Human Rights in the German legal order. It is the first time the Bundesverfassungsgericht has so fundamentally dealt with this topic, moreover in the composition of the complete (second) Senate (not just a chamber of the court). That the constitutional court itself attaches high importance to its decision and expected international interest is witnessed by the fact that the court has made an English translation of the decision available. This is something that does not happen very often, at least until now.

Functional comparison of administrative laws – Development of EU administrative law based on a state-matrix of general principles – Jürgen Schwarze’s approach – Choices of object, objectives, method, assumptions and normative implications – Structural features of the EU administration versus the binary liberty-authority of core principles of national administrative law – Liberal normativist approach – Contemporary critical examination of the legacy of comparative administrative law

Main justifications for regarding common nationality as a necessary condition for holding equal political rights – Critique of collective self-determination, equal stakes, nature of political activity, and stability justifications – Rejection of the incommensurability of legitimacy and justice – Socioeconomic interdependence and liberal democratic values as the normative grounds for equal stakes – Risk of entrenchment of hostility among national groups as a consequence of a competitive conception of political activity – Instrumental value of stability – Stability through democratic inclusion – Possibility of sustainable pluralism through deliberative democracy – Modified version of the equal stakes argument – Equal political rights on the basis of long-term residence – Association of citizenship with nationality in contemporary European states – Redefinition of citizenship as top-down redefinition of nationality – Need to reconceptualise equal political rights independently of citizenship – Legal argument for interpreting references to popular sovereignty in national constitutions in accordance with long-term residence, rather than nationality – Available legal remedies

Conceptual framework for understanding the degree and scope of the political impact of the case law of the Court of Justice of the European Union – Definition of ‘the political’ – Carl Schmitt’s concept of political realism – Chantal Mouffe’s agonistic theory of ‘the political’ – ‘The political’ in the light of three classical categories: (1) polity, (2) policy, and (3) politics – Framework for understanding polity as competing values, policy as conflicts over resources, politics as fights for power – Criteria of political significance and impact of the Court of Justice case law – Two illustrations: Case C-391/09 Runevič-Vardyn v Vilniaus miesto savivaldybės administracija and Case C-192/18 European Commission v Republic of Poland set against the broader context of politically significant cases from the Court of Justice of the European Union.

Three great constitutional conflicts — Great Britain: Commons v. Lords — Parliament Act 1911 — United States: President v. Supreme Court over New Deal — Court Packing plan Belgium: King v. conscience — Democracy wins in each of these cases.

Conceptualising the European rule of law-value – A critique of the concept of European legal community – A conceptualisation of trust for a fresh understanding of the rule of law-value – Trust research in the social sciences – The trustworthiness of the European rule of law in light of calls for breaking up the current order

Collective involvement of member states. Law and practice of nominating the European Commission president and his team. The responsibility to resolve the political conflict and the failure of the Dutch Council presidency. The European Council providing the political authority necessary for a solution.

Interrelation between economic and political dimensions of constitutionalism – European market integration and erosion of democratic representation within Member States of the EU – Regulatory externalities between national democracies – European market citizenship and its ramifications for democratically legitimate exercise of the power to tax – Underinclusiveness of domestic democratic process – Political representation beyond the state – European economic constitution as a source of political empowerment and the EU economic freedoms as political rights – The European Court of Justice as a protector of representation – Reinforcing political participation through regulatory competition – European market freedoms enhance representation but at the expense of political equality – Economic freedoms as insufficient means of political empowerment – Improving democratic representation and equality beyond the state requires properly political citizenship instead of mere market rights

The provision relating to the adoption, ratification and entry into force of the Treaty establishing the Constitution for Europe is probably one of the most difficult ones, both in legal and political terms. It is supposed to define the legal nature and quality of the entire EU process in its present and future phase. There is an inherent ambiguity about the legal nature of the treaty, which is already apparent in the title, and there are profound political implications as well. Is the Treaty establishing a Constitution for Europe a treaty or a constitution? Can it be both or neither? These are hard questions indeed.