The European Union and its Three Constitutional Problems

• Department of Law

This event hosts a presentation by EU Law Professor Sacha Garben (College of Europe).

Is there a ‘real’ future of EU constitutionalism? If we consider that the central function of a Constitution is the establishment, operationalisation and regulation of democratically-derived authority, then EU primary law is suffering from three profound Constitutional problems.

Firstly, while the CJEU makes a claim to final and autonomous authority, this claim has not been explicitly deliberated and endorsed by the peoples of Europe. Second, fundamental rights as laid down in the Treaties and the Charter have ‘over-constitutionalised’ economic freedoms. Third, any achievements in the Constitutionalisation of the EU’s exercise of authority are undermined by the ‘legitimacy-leak’ that results from authority being exercised at EU level though other intergovernmental ‘modes of governance’. These three problems will need to be resolved, as the status quo based on a tacit constitution is untenable in legitimacy terms. But if the EU does so, it can successfully develop into a Constitutional Democracy.

Speaker bio:

Sacha Garben is Permanent Professor of EU law at the Legal Studies Department of the College of Europe. She is furthermore an official in the European Commission (legal officer, DG EMPL), currently on special leave to be at the College of Europe full time. In 2020, Sacha Garben has been appointed as replacement judge at the Amsterdam Court of Appeal. She obtained her PhD at the EUI in 2010, winning the Jacqueline Suter Prize for the Best Doctoral Thesis in European Law 2009-2011. She has since then worked at the Court of Justice of the European Union and at the London School of Economics and Political Science.