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Compound Constitutions in Europe

Amsterdam Centre for European Law and Governance

The notion of Compound Constitutions refers to an understanding of the EU constitutional order as comprising several separate but complementary and interdependent constitutional components: the ‘EU constitution’, the constitutions of the Member States, and interlocking legal regimes at the international level, such as the European Convention of Human Rights, the United Nations Charter, and the framework of the World Trade Organization. Moreover, Compound Constitutions also refers to the functional differentiation between the EU’s economic, political and social constitutions, as well as to their evolution and transformation over time, which translate into both integration and differentiation processes. The underlying core research question is: What are the shifts in authority and powers in this context and how should they be evaluated against a set of fundamental constitutional principles?

Research under this programme engages in particular the incremental and evolutionary nature of the EU’s formal and substantive constitution, and its ‘living’ character. The processes of integration and differentiation occurring in the EU’s economic, political and social constitutions, its legal and political orders, its Member States and the EU institutions as well as international regimes are what can be termed the living constitution as opposed to the written and formal constitution. Layered underneath the more rigid outer crust of formal constitutional legal instruments (Treaty texts, Court judgments developing and applying core legal principles) we find more complex layers of ‘living’ institutions and institutional and constitutional practices with varying degrees of ‘hardness’ (internal institutional rules, inter-institutional conventions, etc.).

In addition, the research programme aims at both identifying and analysing the relationship between the various (political, economic and social) constitutions  and constitutionalisation and deconstitutionalisation processes in the EU exploring to what extent synergies, asymmetries or even dysfunctions between them can be identified. These synergies, asymmetries or dysfunctions are dealt with within the framework of specific projects, workshops and discussions that explore the reflexive relationship between the political or administrative and the economic from the point of view of precise themes, policies or principles (e.g. participation rights, health policy, citizenship and regulatory agency designs, etc.). Crosscutting activities are one unique way in which this research programme will make innovative contributions to the debate in Europe and foster a dialogue among those legal scholars more focussed on economic and competition law and those legal scholars more focussed on general issues of administrative and constitutional law.

Various ‘levels’, types, actors and concepts intertwine in a shared or compound whole that is more indeterminate and complex than the sum of the separate parts. The underlying hypothesis of this research programme is that compound constitutions are emerging in which national and European actors share powers and coordinate action, but also exercise powers largely independently, and in which different legal and economic systems overlap and complement each other. The word ‘compound’ draws attention to this combination of several elements that may lead to convergence, inconsistencies and divergence.

This research programme seeks to critically analyse these developments within the EU constitutional order. It provides a common framework for the analysis of both the evolution of and the relationship between its different constitutional components within a rapidly expanding and deepening European Union that at times also triggers differentiation, dispersion, disaggregation and perhaps even disintegration. The overall aim of the research programme is to map the evolution of the living European constitution as well as to analyse the manner in which this institutional and legal map fits within a constitutional perspective on the rule of law, access to justice, accountability, democracy, the role of citizens and the balance between economic and social rights. It includes an assessment to what extent the existing constitutional constraints and safeguards are capable of holding to account the diffused rule-making power in Europe.