The European Union acts as a venue in which the EU member states enhance their problem-solving capacities when faced with issues having a cross-border or global dimension. Primary European Union law (‘the EU’s Constitution’) has served as a tool allowing for the adoption of a growing range of such European public policies. However, the EU’s constitution also occasionally acts as a constraint by not allowing for the adoption of certain political projects or steering them in a direction that does not correspond to the views of the (majority of) political actors. This constraining role is strengthened by constitutional overload (the sheer volume of norms of EU primary law) and constitutional inertia (the great difficulty of enacting revisions of the EU Treaties). As a response to these limits of the Union’s capacity to act, we have seen in recent years an increasing recourse to forms of flexible integration, and to unorthodox legal arrangements.
This paper discusses the role of constitutional adjudication by highlighting the facilitative role played by the European Court of Justice and national constitutional courts throughout the process of European integration. Courts involved in judicial review of legislation, it is claimed, do not necessarily operate in opposition to government; rather, their activity can be conceived of as enabling a variety of governmental regimes and policy strategies. Indeed, only in rare circumstances do constitutional adjudicators inhibit policy-making; more often, their role is a facilitative one in that it reinforces or corrects legislative measures without hindering the pursuit of legitimate collective goals.
Did the OMT saga represent a Constitutional Moment or merely a constitutional moment? In its OMT decision, its first ever reference to the ECJ, the German Constitutional Court presented a dramatic challenge to a programme that was considered essential to the survival of the single currency but was unorthodox and arguably of dubious constitutionality. Although the German Court eventually backed down, the full impact of its challenge continued to reverberate. How are we to interpret the meaning and effect of the OMT saga? A reassertion of the Westphalian power of the largest Member State? A defense of the rule of law against the exercise of arbitrary power? It reflects rather two conflicting dynamics. On the one hand, a particular substantive economic and market logic. On the other, a telos that presupposes bonds of solidarity between MS. This conflict reflects a broader constitutional disequilibrium in European integration: a constitutional moment, but not (yet) a Constitutional Moment.
The paper analyses the shortcomings of characterizing the precisely delineated powers of market intervention of the EU regulatory and supervisory agencies by reference to the degree of precision of the enabling norms. It argues that, even if by reference to statutorily indicated goals, and constrained by a series of regulatory requirements and tightly knit procedures, EU agencies endowed with a combination of instrumental and final, formal and informal powers, get to identify and interpret the socially desirable goals of public action and shape legal relationships accordingly. They build the normative understandings that shape the legal relationships under their jurisdiction. Theirs are constitutive powers, which inhere in their function and accommodate various degrees of discretion within the limits of Meroni.