The Tangled Complexity of the EU Constitutional Process

Giuseppe Martinico is Full Professor of Comparative Constitutional Law at the Scuola Superiore Sant’Anna, Pisa.

Preface to the second edition: Why a new edition?

Preface and acknowledgements to the first edition

1 Only a drop in the ocean? An attempt to classify the debate about the notion and the nature of the European Constitution

1.1 Introductory remarks

1.2 When concepts matter: what do we mean by ‘constitutionalisation’, ‘constitution’ and ‘constitutionalism’ at EU level?

1.3 Dealing with the literature: what about the ‘efficient secret’ of the European Constitution? Some attempts at classification

1.4 The persistent terminological ambiguity with reference to European constitutional law

1.5 Concluding on fundamental rights in EU law

1.6 Final remarks

2 Dealing with constitutional theories of European integration

2.1 Plan of the chapter

2.2 Multilevel constitutionalism

2.3 Constitutional pluralism

2.4 Complexity as ‘the efficient secret’ of the European Constitution

2.5 From complexity to constitutional synallagma: some examples

2.6 The idea of a complex ‘order’

3 Constructivism, evolutionism and (mega) constitutional politics in the EU from 1992 to 2010

3.1 Plan of the chapter

3.2 Constitutional constructivism versus constitutional evolutionism

3.3 The discontents of European constitutionalism and their relations with constitutional constructivism

3.4 The (attempted) hijack of the acquis communautaire

3.5 The Maastricht Treaty as a turning point in the relationship between the ECJ and national governments

3.6 Pupino: a frustrated attempt to limit the interpreter?

3.7 The season of the conventions and its products

3.8 Article 4.2 TEU as the apex of a constitutional crescendo

3.9 The Charter of Fundamental Rights of the EU

3.10 Final remarks

4 The multiple crises of the European Union (2011–2021)

4.1 An existential crisis

4.2 The impact over the EU constitutional system and the reaction to the pandemic

4.3 Why the European Union is not (only) an ordoliberal entity

5 Complexity in action: from the structure to the actors

5.1 Plan of the chapter

5.2 Multiple loyalties and complexity in action: how hard it is being a judge in a complex legal order

5.3 The idea of constitutional conflicts as a direct consequence of the constitutional complexity of the EU

5.4 Back to case law: a possible typology of constitutional conflicts

5.5 Conflicts by convergence as one of the unexpected consequences of the constitutionalisation of the EU

5.6 The importance of a consistent interpretation as a technique for recognising fully fledged ‘conflicts’

6 On the future of constitutional conflicts

6.1 On European monstrosity

6.2 Pushing the incoming tide back? Some notes on Brexit

6.3 Past and future of constitutional conflicts

Index