Securing the European Project: From Self-Referentiality to Heterarchy

Abstract

Security is the meta-constitutional rationale of the European liberal project and is expressed by two tendentially self-justificatory discourses of power, which are two sides of the same coin: security and rights. The political, inherently conflictual nature of EU constitutional claims has been variously disguised through such discourses. Yet, as the process of constitutionalisation reaches a more advanced stage, in which the probability of high-intensity legal-political conflict as regards key issues of EU integration is growing, the moment has come to address conflict directly, rather than conceal it behind a veil of neutrality. Being ready for actual confrontation means dismissing the straitjacket imposed by the European liberal project. A move from self-referential to heterarchical security is thus advocated. As a result, the constellation of nation states should not be sidelined too easily and the needs and claims of the local level should be considered more carefully. In other words, the principles of primacy, autonomy, uniformity, and effectiveness of EU law ought to be conceived in relative, rather than in absolute terms. One possible way of addressing conflict is to simultaneously permit the CJEU (as well as other EU institutions) to engage more proactively with national courts and identify a common epistemic core, which ought to be upheld whenever the liberal-democratic premises of the European project are threatened.

The Idea of Discursive Constituent Power

“…As mentioned earlier, rights and security discourses were present already at the onset of European integration, despite the fact that no provision explicitly mentioned rights in the Treaties of Rome. After all, as noted perceptively by Baquero Cruz, even the principles of direct effect and primacy, which were not mentioned 82 M. Fichera (2018), 39-63. 83 'Opinion de Sieyes sur plusieurs articles des titres IV et V du projet de constitution' in M. Dorigny (1989).…”

“…Going beyond that simplistic distinction points towards a form of amendment that calls for an alternative way of interpreting a norm or a set of norms, which challenges what was until then the commonly perceived sense of legality. In 64 M. Fichera (2018), 39-63. 65 See, e.g.…”

“…The role of Member States in the polity-building process cannot thus be dismissed. However, EU constituent power does not lie only with them, nor with any particular organ or body or 'elitist' group of people, but consists in the aforementioned discourses, existing 74 M. Fichera (2018), 46. 75 G. Majone (2014.…”