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ABSTRACT
A number of scholars draw on Gill’s new constitutionalism as they engage and critique the outcomes of what is viewed as a neoliberal shift toward new legal norms in policymaking and regulation. This article takes a closer look at the unique constitutional configuration of the European Union and demonstrates that while this environment is the quintessence of a new kind of constitutionalism, it is one considerably different from Gill’s. The focus is on the European Court of Justice, one of the loci of constitutionalization, and, given the logics brought to bear, a prime site for analysis. It thus attempts to show that new constitutionalism is better treated as a multidimensional construct, and calls for its reconceptualization outside of the mainstream understandings.
Notes
1 There exists some work on governance dynamics (Capano, Howlett, & Ramesh, Citation2015), experimentalism (Sabel & Zeitlin, Citation2008, Citation2010) or new modes of governance in general (Heritier & Rhodes, Citation2010), less interested in constitutionalism, however.
2 Some authors see embedding but that of neoliberalism. In embedded neoliberalism, social protections coexist with economic liberalism, but in a subordinated relation (Van Apeldoorn, Citation2009).
3 Financialization is the increasing importance of financial rather than productive activities in capital accumulation.
4 As explained by Cohen and Sabel at the outset.
5 The work of a ‘group of baffled and confused men [who had] little understanding of how their solution would work out in practice’ (Dahl, Citation2003, p. 67).
6 No doubt, Scharpf adds, ‘that “social Europe” would stand on safer legal ground if the Court and the Commission could be required to apply a similar balancing test to potential conflicts between European internal market and competition law, and national policies promoting employment and social protection’ (Citation2002, p. 659). But don’t they?
7 And the definitions come with deep implications to these authors’ analyses.
8 We use Europe interchangeably with the European Union, just as America is used to describe the United States of America, despite its continental neighbors.
9 Tuori notes that environmental sectoral dimension, for example, was not included, and explains this is due to ‘the criterion of differentiation: primary environmental law or the accompanying constitutional doctrine and theory have not reached the required level of differentiation.’
10 Also in Hirschl (Citation2009).
11 While the underlying reasons for this shift are subject to debates, it is clear there exist more than one. Here, Hirschl identifies four classes of conventional theories of constitutional transformation: the ‘democratic proliferation’ thesis, evolutionist theories, functionalist explanations, and institutional economics models.
12 Laval is a Latvian firm operating in Sweden under its subsidiary L&P Baltic Bygg AB.
13 A more thorough legal perspective can be found in Morijn (Citation2006).
14 In 2003, the European Council decided not to pursue sanctions against Germany and France for their breach of the Stability and Growth Pact (SGP). The European Commission challenged this decision and asked the ECJ to annul it in C-27/04. In its first major decision in the economic and monetary realm, the ECJ ruled against taking action on procedural grounds, and thus inspired SGP changes. SGP has since seen a series of reforms, including a shift to ‘reverse qualified majority’ to avoid ‘cartel’ voting (Tomášek, Citation2016).
15 Lindstrom takes a look behind the scenes of Laval and Viking and provides a vivid account of the clashes of interests among national governments, unions (with their differing prerogatives across the EU), the employers, and various interest groups and coalitions.