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The European Constitutional Treaty: An Analysis

Published online by Cambridge University Press:  06 March 2019

Udo Di Fabio

Extract

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The European Union takes on a new look. The Constitutional Treaty, which was agreed by the heads of State or Government on 18 June 2004, will, admittedly, not reinvent Europe, but it will establish a new foundation for Europe. It is true that originally the Constitutional Treaty was only supposed to improve Europe's legal bases and to make the European idea and the institutions of the European Union more accessible to the citizens. However, through the concept of a Constitution alone, the Constitutional Treaty has created a vigorous political impulse, and has marked a new level of Europe's identity. The use of the term “Constitution,” however, also gives rise to ideas, hopes and fears that in some cases need to be corrected.

Type
European & International Law
Information
German Law Journal , Volume 5 , Issue 8 , 01 August 2004 , pp. 945 - 956
Copyright
Copyright © 2004 by German Law Journal GbR 

References

1 Paragraph 2 of the Preamble.Google Scholar

2 The primacy of Community law over national law (including national constitutional law) has been a part of primary law since the acquis communautaire; see Case 285/98, Tanja Kreil v. Federal Republic of Germany, 2000 E.C.R. I-69 (2000). Nevertheless, the primacy of Community law will be functionally limited even after the entry into force of the present draft Constitutional Treaty (primacy of application). Pursuant to the primacy of application, contrary national law is not per se void, i.e. completely ineffective, it is only inapplicable as far as the scope of mandatory application of European Community law reaches, which is based on the principle that the powers of the Community are limited to those specifically conferred upon it. In other respects, contrary national law remains effective.Google Scholar

3 According to this approach, the closure of a municipal kindergarten that is no longer needed can be regarded as a form of discrimination against women because the dismissal of the (female) kindergarten teachers will only affect women. The cutback on social benefits can be understood as a form of discrimination against foreigners if a disproportionate number of those entitled to such benefits are foreigners.Google Scholar

4 In this context, see Franz-Jürgen Säcker, Vernunft statt Freiheit!, Zeitschrift für Rechtspolitik – ZRP 286 (2002).Google Scholar

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7 On the idea of an interlinked and ever more autonomous international law and on the concept of the world society as a description of a process of internationalisation, see Niklas Luhmann, Die Weltgesellschaft, 57 Archiv für Rechts- und Sozialphilosophie 1 (1972); Luhmann, Niklas, Die Weltgesellschaft, 2 Soziologische Aufklärung 51 (1975); John W. Burton, World Society (1972); Niklas Luhmann, Soziale Systeme 585 (1984);, Peter Heinz, Die Weltgesellschaft im Spiegel von Ereignissen (1982); Immanuel Wallerstein, Geopolitics and Geoculture. Essays on the Changing World-System (1991); Ulf Hannerz, Cosmopolitans and Locals in World Culture, 7 Theory, Culture & Society 237 (1990); Udo Di Fabio, Der Verfassungsstaat in der Weltgesellschaft (2001); Fabio, Udo Di, Verfassungsstaat und Weltgesellschaft, in Symposion zum 60. Geburtstag von Paul Kirchhof 57 (Mellinghoff et al. eds., 2003).Google Scholar

8 Dahrendorf, Ralf, Ein merkwürdiges Dokument, Die Welt, of 12 July 2004.Google Scholar

9 Report from the Commission “Better Lawmaking 2003” pursuant to Article 9 of the Protocol on the application of the principles of subsidiarity and proportionality (11th Report) COM (2003)770 at 31.Google Scholar

10 The number of bills in the 14th German Bundestag was 1013 in the entire four-year term, 549 of which were promulgated as Acts (Wissenschaftlicher Dienst Bundestag, Parlamentsmaterialien, as per 25 June 2004).Google Scholar

11 Report from the Commission “Better Lawmaking 2003” pursuant to Article 9 of the Protocol on the application of the principles of subsidiarity and proportionality (11th Report) COM (2003)770 at 36.Google Scholar