Discussion The Eurozone Crisis, the Coronavirus Response, and the Limits of European Economic Governance

In: The Idea of Economic Constitution in Europe
Authors:
Peter Lindseth
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Cristina Fasone
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Abstract

As the Eurozone crisis amply demonstrated, one of the core limitations of European governance is the inability of the EU to mobilize resources on its own authority rather than using the Member States for this purpose. In this crucial respect, the EU has largely remained an (admittedly powerful) supranational technocratic and juristocratic (i.e. ‘administrative’) body. But it otherwise lacks the distinguishing attribute of ‘constitutional’ authority in the most robust sense: the capacity to mobilize fiscal and human resources in a legitimate and compulsory fashion. In our view, one should therefore avoid speaking of European governance in autonomously ‘constitutional’ terms (economic or otherwise), as that discourse leads to a profound misunderstanding of what a fundamentally administrative (i.e. ‘sub-constitutional’) EU can realistically and legitimately achieve on its own. We submit that the disconnect between the language of constitutionalism and the EU’s fundamentally administrative character is a core contradiction that the contributions of Francesco Martucci and of Hjalte Lokdam and Michael A. Wilkinson each highlight but do not name. Our purpose here is to bring that contradiction more squarely to the fore, even as we contemplate whether the response to the coronavirus pandemic introduces a potentially ‘constitutionalizing’ dynamic into European governance, even if it is one whose outcome remains, at this stage, difficult to foresee.

Introduction

The contributions we have been asked to comment on here – those of Francesco Martucci1 and of Hjalte Lokdam and Michael A. Wilkinson2, respectively – each take an historical approach to understanding the current state of the EU’s Economic and Monetary Union (emu). Both contributions identify broadly similar ‘neoliberal’ ideological foundations and outcomes, although in tracing this genealogy each uses a somewhat different approach. Francesco Martucci deploys what we might call the classic tools of historical political development and policy history, whereas Hjalte Lokdam and Michael A. Wilkinson focus more on historical political economy and critical intellectual history. The results, however, are broadly complementary. As a threshold matter, as Francesco Martucci puts it, we think it is fair to say both contributions agree that:

l’uem reflète une construction qu’on pourrait qualifier de néolibérale en ce sens qu’il s’est agi d’adapter la politique économique et monétaire en fonction de la contrainte des marchés financiers. Les racines théoriques de l’uem révèlent en effet qu’il s’est agi, afin de garantir une stabilité macro-économique nécessaire à une monnaie unique, d’imposer le respect de règles dans la conduite des politiques monétaire et économique. Toutefois, il convient de relativiser la portée juridique de ces règles car, derrière le discours du constitutionnalisme économique, une large marge de manœuvre est laissée au politique.3

Hjalte Lokdam and Michael A. Wilkinson are, however, more ambitious in their effort to characterize the precise nature of this neoliberal imposition of policy constraints on national and supranational governance. In their view, this history has given rise to “an authoritarian framework of governing”, one designed “to insulate the market from democratic pressures”.4 Most importantly, this framework has “entrenched a distinction between the authorization and exercise of governmental powers that was supposed to limit governmental flexibility at both the Member State and Union level, subjecting governmental discretion to constitutional rules rather than ordinary political contestation”.

The observations we will offer here are broadly sympathetic to the interpretations offered by both Francesco Martucci and Hjalte Lokdam and Michael A. Wilkinson. We thoroughly agree that, under the guise of a purported economic constitutionalism,5 European elites have tried to remove highly contested matters from the realm of traditional democratic politics.6 The principal means of doing so has been the supranational imposition of rule-based constraints on the exercise of sovereign power at the national level. In our view, however, one should avoid speaking of these constraints in autonomously ‘constitutional’ terms (economic or otherwise), as that discourse obscures something crucial about the nature of EU governance. These constraints no doubt have had an impact on the exercise of constitutional power at the national level; nonetheless, they should not be understood as ‘constitutional’ in their own right.7 To use that terminology is in fact a category mistake, confusing the idea of a supranational ‘constitution’ with the EU’s essentially technocratic and juristocratic, i.e. ‘administrative’ (and hence ‘sub-constitutional’), character. This is not just a problem of legal semantics or a dispute over labels with no substantive import. The constitutional discourse leads, rather, to a profound misunderstanding of what a fundamentally technocratic and juristocratic (again, ‘administrative’) EU can realistically and legitimately achieve on its own. We submit that the disconnect between the language of constitutionalism and the EU’s fundamentally sub-constitutional, administrative character is a core contradiction that the contributions by Francesco Martucci and by Hjalte Lokdam and Michael A. Wilkinson each highlight but do not name. Our purpose here is to bring that contradiction more squarely to the fore, in order to demonstrate how it defines the limits of EU (and emu) governance.

1 Resource Mobilization and the Boundary between Administrative and Constitutional Power

The EU generally, and the emu more specifically, today sit uncomfortably at the boundary between mere administrative governance and the aspiration to a genuine form of supranational constitutionalism. European governance depends, first and foremost, on a delegation of regulatory power from constitutional bodies on the national level to primarily technocratic and juristocratic (again, ‘administrative’) agents on the supranational level. Of course, EU institutions also enjoy an electoral component by way of the European Parliament (ep) – something that many lawyers, judges and law professors often see as essential to advancing the EU’s autonomously democratic and constitutional legitimacy. Nonetheless, this electoral dimension of European governance has in fact done little to alter the fundamentally administrative character of European integration.8

The essential purpose of delegating regulatory power to EU institutions has been to create mechanisms to police the Member States’ fulfilment of their legal ‘pre-commitments’ to each other (most importantly, but hardly exclusively, in the area of free movement in all its forms).9 In fulfilling this function, these supranational agents – above all the European Commission and the Court of Justice of the European Union (cjeu), joined more recently by the European Central Bank (ecb) – possess considerable technocratic and legal legitimacy as well as normative autonomy (again, supplemented by an electoral component via the ep). And there can be no doubt that this ‘pre-commitment’ function has had important consequences for the operation of democratic and constitutional power on the national level, something also true of the rise of the administrative state more generally over the course of the 20th century.10 But even as this ‘pre-commitment’ function has had important constitutional consequences, it has never attained autonomous democratic and constitutional legitimacy in its own right, at least in the most robust sense we will describe in this contribution. Rather, the EU’s legitimacy, as an instantiation of supranational administrative power, has remained fundamentally ‘parasitic’ on the democratic and constitutional legitimacy of national institutions.11 Indeed, as will also be detailed below, the limitations inherent in the EU as an extension of administrative governance to the supranational level, without robust constitutional authority of its own, explains much about the struggles of European integration over the last decade of crisis.

One would never understand these limitations, however, by looking at the discourse of legal elites in the EU – lawyers, judges, law professors – who, for the most part, continue to describe the function of the EU’s supranational agents in autonomously constitutional terms. Perhaps the leading example is the landmark Les Verts judgment in 1986, in which the Court of Justice itself famously described the European Treaties as a “constitutional charter of a Community based on the rule of law”.12 This lofty characterization – which casts the EU as a vehicle for ensuring the rule of law through the enforcement of seemingly constitutional principles – has long dominated European legal scholarship even as there are persistent concerns today about its aptness.13 No doubt, this characterization contains an important element of truth on a semantic level. Among the many meanings given to the term ‘constitution’,14 perhaps the most widespread in the EU relates to the limitation and constraint of power, and more particularly of national power. For many advocates of integration, this function serves as integration’s ultimate finalité, addressing the pathologies of nationalism after the atrocities of 1914–1945, countering the “democratic malfunctions in national political processes”15 and taming the domination of one or more nation states over others.16 The internal market has certainly been one of the major achievements of that effort, requiring Member States in the EU to delegate power to supranational ‘pre-commitment’ institutions to police the Member States’ fulfilment of their mutual legal commitments to each other and thus prevent the asymmetric vindication of power by any single Member State.

And yet, even as the Union’s output legitimacy (at least in terms of a prosperous internal market) has often met expectations, the EU is nonetheless still a paradoxical combination of strength and weakness. On the one hand, the Union itself has been accused of questionable self-empowerment,17 as well as developing mechanisms of democratic legitimation that are inadequate to counter-balancing the EU’s ‘supranational technocracy’.18 On the other hand, in terms of resources available to it, the EU is broadly recognized as quite weak. At least up until the coronavirus pandemic (about which more below), the EU’s budget was capped at a level between 1.29% of all the Member States’ gni for commitment appropriations and 1.23% of the EU gni for payment appropriations19 (amounting to 153 billion euro in payments for 2020). In other words, the budget was traditionally set at an amount much smaller than the average budget of a medium-size Member State. This could hardly be sufficient to fulfil the demanding objectives set forth in the Treaties, much less addressing a crisis on the scale of the climate emergency or the coronavirus pandemic. According to the objectives set out in Article 3 teu, integration is, among other things, supposed to help achieve “the well-being of its peoples” and “a highly competitive social market economy, aiming at full employment and social progress”, while also “combat[ting] social exclusion and discrimination” and contributing to “the sustainable development of the Earth” and the “eradication of poverty”.

But one might fairly ask: how could the EU possibly achieve these demanding goals if it lacks the ability to mobilize its own revenues, most importantly via its own taxing and borrowing authority? This question of resource mobilization, frankly, is crucial to determining whether the EU is merely an (admittedly powerful) supranational administrative body rather than an autonomously constitutional entity in its own right. The EU Decision on own resources – which applies both to taxes as well as common borrowing under the Multiannual financial framework (mff) – requires unanimity in the Council and only the consultation of the European Parliament, and its entry into force is conditional upon the approval of the Member States according to domestic constitutional requirements (Article 311 tfeu). Moreover, the EU budget has traditionally been financed by national contributions (nearly 80%), whereas the remainder has come from a series of taxes that are in fact collected nationally – historically sugar levies, customs duties, and a percentage of the harmonized Value-Added Tax (vat).20 The pandemic response has altered this reality to some extent, by adding to these nationally-collected taxes a layer of shared EU debt, allowing the budget to reach a level of roughly 2% of gni for a limited five-year period. However, just as before, this debt will be backed by tax revenues mobilized at the national level, not the EU’s own taxing authority.

In other words, there remains no EU tax collection service that ‘wears the EU badge’, so to speak, operating on the basis of the EU’s own autonomous legitimacy rather than that of the Member States. The absence of a supranational power and legitimacy to mobilize these resources directly has created never-ending tensions around the EU budget between Member States that are net contributors and those that are net beneficiaries, as well as the recurrent claims by the former to so-called ‘rebates’ (first of all for the UK – while it was still a Member State – and thereafter for such net contributors as Austria, Denmark, Germany, the Netherlands, and Sweden).21 The last decade of crisis in the EU has only accentuated these tensions in the European system. During the Eurozone crisis, observers rightly criticized the nature and the pace of the supranational response,22 which was constrained in considerable part by the EU’s lack of autonomous fiscal capacity. The persistent reliance on intergovernmentalism, as well as the use of extra-EU sources of law to manage an obviously pan-European problem – not to mention a heavy reliance on unconventional monetary measures by the ecb – brought the legitimacy and effectiveness of the collective European response into question.

The Eurozone crisis, alongside the incomplete nature of the emu – long devoid of a fiscal pillar23 – brought to the fore one of the main weaknesses of the European system: while the EU may claim an autonomously constitutional character, that character is based almost entirely on constraining Member States’ power. The EU cannot, however, compel the legitimate mobilization of resources on its own accord – arguably the very essence of genuinely ‘constitutional’ authority. As one of us has argued elsewhere:

[...] The ‘constitution’ of power entails the sociopolitical emergence of mechanisms to extract and redirect (‘mobilize’) human and fiscal resources in a legitimate and compulsory fashion. Legitimate compulsory mobilization is the crucial element in the political metabolism of a community, converting social and economic resources into work for public ends. This ‘metabolic’ function, if you will, is the essential element of any genuinely ‘constituted’ public authority. [...] In this sense, legitimate compulsory mobilization is the true sine qua non of constitutional authority.24

Regardless of the breadth of the EU regulatory powers,25 the unwillingness of Member States to equip the EU with the autonomous power to mobilize revenues in a compulsory fashion casts serious doubt on the EU’s purportedly constitutional character, at least in the most robust sense. What remains, therefore, is an EU fundamentally of a sub-constitutional, technocratic and thus ‘administrative’ character. In this state of affairs, the metabolism of the EU remains primarily in the hands of the Member States and their budgetary authorities, even as that power is now subject to regulatory constraints at the supranational level. The conditionality imposed by the EU on this power may have many variants – linked, as it often is, to financial assistance, the compliance with macroeconomic rules, green standards, or the rule of law. But despite that conditionality, the situation – in terms of the actual mobilization of resources – is not unlike the ‘pre-constitutional’ United States under the Articles of Confederation, in which the ‘confederal’ level, such as it was, remained entirely dependent on the polycentric legitimacy of its constituent states to mobilize resources on the confederation’s behalf.26

It follows that the EU’s ‘metabolic constitution’ – the manner in which resources are mobilized towards the ends of European integration – is fractured in several ways, leaving the EU, as fundamentally a form of administrative governance, unable to transcend its own socio-legal and socio-institutional limitations as such. The most fundamental limitation, discussed in the second subchapter below, flows from the disconnect between power and legitimacy in the Union, by which we mean the repeated conferral of regulatory power on European institutions, albeit without the EU enjoying the necessary democratic and constitutional legitimacy to support the exercise of this power through an autonomous mobilization of resources in its own right. This contribution then explores how this break in the necessary ‘power-legitimacy nexus’27 has manifested itself in EU governance over the last decade, most importantly in the Eurozone crisis. We then critically examine measures foreseen as part of the response to the coronavirus pandemic (most importantly, the Next Generation EU recovery and resilience facility). Our overall aim with this analysis is to assess the extent to which these more recent efforts may constitute a paradigm shift – a ‘critical juncture’28 – in the EU’s fractured metabolic constitution (spoiler alert: they do not, at least not fully and not yet, again leaving the EU fundamentally of an administrative, technocratic character). Finally, in conclusion, we take stock of where the EU now stands and what might need to happen in order to overcome or transcend the boundary between administrative and constitutional power, thus perhaps leading to development of a genuinely autonomous constitutional metabolism at the supranational level in Europe.

2 The Fundamental Fracture between Power and Legitimacy in European Integration

As has long been recognized, it can be very disorienting trying to come to terms with the EU’s “constitutional structure … of bits and pieces”.29 The complex interplay between the scope of the EU’s power and its lagging legitimacy contributes directly to a sense of estrangement on the part of the average European citizen towards the European system. The power to mobilize resources in a compulsory fashion – most importantly, to tax – is intimately bound up with the scope of legitimacy enjoyed by the political structure in question, notably by a national legislature. Regulatory powers, by contrast, may be possessed by an entity with a lesser and more derivative legitimacy, such as a technocratic agency within the limits provided by the principle of legality. In short, different degrees of legitimacy support different kinds of power. We can call this the ‘power–legitimacy nexus’, which refers to “the linkage between the nature of the legitimacy enjoyed by a legal or political order (legal, technocratic, functional, or robustly democratic and constitutional) and the scope of power that the legal order can then successfully exercise”.30

No less than in any other system, that power-legitimacy nexus defines the scope of power that the EU can successfully exercise. The bases of legitimacy in the EU are, variously, national-executive (the European Council and the Council), technocratic (the Commission and the ecb) and juristocratic (the Court of Justice). Moreover, the EU’s ‘legislature’ (European Parliament and Council), such as it is, may inject an electoral component into the system, either directly or indirectly, but that ‘legislature’ lacks the autonomous power and legitimacy to extract and redirect fiscal and human resources on a societal scale akin to a national parliament.31 This crucial feature of the European system points us towards the ambiguous and incomplete ‘constitutionalism’ in EU public law.32 European supranationalism undoubtedly reflects the constraining type of constitutionalism, for example in the separation of powers or the protection of rights as well as in the use of various kinds of conditionality mechanisms. But EU public law falls short of constitutionalism in the most robust sense, i.e. the legitimate-compulsory mobilization of resources separate and apart from the Member States.

This is hardly to say that the constraining activity of EU institutions is without value. Indeed, the opposite is true: the EU acts as a crucial agent of peaceful cooperation and coordination, seeking to ensure that the Member States fulfil their myriad legal and political commitments to each other. “For this reason, as a matter of functional necessity, the EU must operate with a degree of autonomy from direct member-state control (although not from member-state legitimation)”.33 But in pursuing this essential function, the EU lacks a robustly constituted power, precisely because the EU does not (as yet) possess the deep-rooted democratic and constitutional legitimacy of a pan-European variety needed to sustain it.34 And it is for this reason that the metabolic constitution of the EU is polycentric, fractured among the several Member States, where – despite the extensive delegation of power to EU technocratic and juristocratic bodies – the robust form of democratic and constitutional legitimacy continues to reside.35

In this way, the EU is ‘parasitic’ on the democratic and constitutional authority on the national level.36 Thus, when national democracies suffer from constitutional retrogression or are under populist attack or risk a serious economic downturn, the EU is also affected in its ability to deliver. Since the 1990s, the increasing globalization of economies and the interdependence among legal systems have combined with other challenges – from climate change to migration, terrorism, and health emergencies – to demand forms of governance beyond the nation-state. In the case of the EU, these challenges have further amplified both the functional demands for ‘more Europe’ as well as the gap between the EU’s needed powers and its lagging legitimacy. Not only is the legal basis for the exercise of EU authority often contested, but the EU is also unable to mobilize the needed resources in a compulsory and legitimate manner to support that authority even when it is legally determined to exist. Although the EU is often, functionally and even legally, the most apt level to act, it nonetheless cannot provide the fiscal and human lifeblood to the response. By contrast, national political communities, while equipped with the democratic and constitutional legitimacy to mobilize resources, are often functionally limited in what they can achieve alone and therefore must coordinate through the EU in order to address problems effectively.37

The challenge, therefore, is to bridge this fundamental disconnect between the two levels of governance in the EU – robustly democratic and constitutional at the national level, primarily administrative, technocratic and juristocratic at the supranational level. Both are essential to addressing the myriad challenges that Europe has faced over the last decade – from the Eurozone crisis, to the climate emergency, to the coronavirus pandemic. From the perspective of the so-called ‘democratic deficit’ at the supranational level, this may appear mainly as a challenge of institutional engineering, something that can and should be addressed by further ‘democratization’ at the EU level. That is a normatively attractive option but, as experience has shown, it has proven easier said than done. The reason is that the ‘democratic deficit’ misunderstands the actual nature of the European edifice, assuming it is robustly constitutional when Member States refuse to endow it with powers beyond those of an (again, admittedly powerful) administrative agency. At this stage of the EU’s development, the true challenge is thus to find ways to bridge the ‘democratic disconnect’ between the European and national levels, which today requires finding a way to channel the democratic and constitutional legitimacy (and hence mobilization powers) of the national governance to the supranational level. Such channelling remains essential when dealing with forms of fundamentally administrative governance, as in the EU. Unless and until a deeper transformation – that is, a ‘critical juncture’ – takes place in the relationship between power and legitimacy in European governance, the EU will remain fundamentally a sub-constitutional instantiation of administrative governance.38 The problem is much more socio-political and socio-cultural than it is simply legal and institutional, something that integration’s most fervent (usually legal) advocates repeatedly ignore.

If one were to translate this point into the terms of Dani Rodrik’s famous ‘political trilemma of the world economy’,39 the challenge in the EU context becomes clearer. Rodrik’s model tells us why, as between maintaining national sovereignty, preserving democratic politics, and pursuing deep economic integration, “we can combine any two of the three, but never have all three simultaneously and in full”.40 Considerable nuance is necessary, however, to apply this model to the EU case. Most importantly, one needs to reconcile integration’s extensive delegation of regulatory power to the supranational level with the retention of legitimate-compulsory mobilization powers by national parliaments. The best way to do so, we suggest, is through an appreciation of the aforementioned power-legitimacy nexus,41 as well as how this nexus has shaped the balance between democracy, sovereignty, and economic integration in the EU context. To achieve this reconciliation, integration necessarily built on what we can call, in historical terms, the ‘post-war constitutional settlement of administrative governance’.42 When applied to realities of European integration, Rodrik’s trilemma would properly look something like this:

Figure 1
Figure 1

Rodrik’s trilemma applied to European integration

The EU operates primarily along the left prong of Rodrik’s model, through the delegation of regulatory power to supranational ‘pre-commitment’ institutions, both technocratic (e.g. the Commission or the ecb) as well as juristocratic (the cjeu). The very purpose of these institutions is to police the member states’ fulfillment of their legal commitments to each other in the treaties (hence mobilizing national sovereignty in service of deep economic integration). Because the EU’s ability to achieve autonomous democratic and constitutional legitimacy is limited (alas, the ever-present ‘no-demos problem’), it cannot combine supranationalized democratic politics and deep economic integration as it aspires to do (the right prong of the model). In the end, the necessary reconciliation of supranational regulatory power and national democratic and constitutional legitimacy must occur along the bottom branch of the trilemma, albeit with some adjustments not properly accounted for in Rodrik’s original. These include constitutional limits on the scope of power delegable to the EU level (particularly in terms of resource mobilization); nationally-mediated oversight (executive, legislative and judicial) of powers otherwise delegable to the EU; as well as transparency, participation and reason-giving obligations at the EU level in order to reduce information costs to such nationally-based oversight.43

The purpose of such mechanisms, in other words, is to find ways to bridge the ‘democratic disconnect’ between the national and supranational levels in the EU. But in the end, this bridging challenge is not simply one of institutional engineering; rather, it is more deeply socio-political and socio-cultural, imposing clear constraints on what a still-fundamentally ‘administrative’ EU, as currently constructed, can realistically achieve without constitutional legitimacy of its own.

3 The Multilevel Impact of the Democratic Disconnect in and after the Eurozone Crisis

Europe’s experience with the global financial crisis, and more particularly with the Eurozone crisis, manifested this socio-political and socio-cultural challenge quite well. The Eurozone crisis was defined by two inter-related impacts operating in parallel: on the one hand, the sense of power-legitimacy fracture deepened at EU level; on the other hand, the response to the crisis brought the nexus between power and legitimacy at the national level into question as well. We will take each of these parallel effects in turn.

3.1 The Eurozone Crisis and the Deepening Sense of Power-Legitimacy Fracture at EU Level

Confronted by a risk of collapse of some Member State economies (and hence, potentially, of the emu as a whole), the EU was in desperate need of an immediate common response to the debt crisis that erupted in 2010. Aside from not having enough resources of its own to deal with the situation credibly, the EU also faced legal obstacles to a proper deployment of support and assistance. Articles 123 and 125 tfeu, as is well known, prevented two potentially helpful responses: on the one hand, the ecb was barred from providing financial assistance to Member States through direct purchase of government bonds; on the other hand, the Union itself was prohibited from “assum[ing] the commitments of central governments, regional, local or other public authorities [...]”. Despite these restrictions, EU institutions and the Member States were very creative in developing work-arounds in order to save the euro. At the very early stages of the Eurozone crisis, the EU established a temporary fund, the European Financial Stabilisation Mechanism (efsm), to provide emergency lending of up to 60 billion euro, backed by an implicit guarantee in the EU budget.44 The capacity of this fund, however, was much too small to handle the assistance needs of a growing number of countries. Consequently, in June 2010, the Eurozone Member States created a temporary mechanism, regulated under private law, known as the European Financial Stability Facility (efsf). This mechanism laid the foundation for the eventual creation of a permanent fund, the European Stability Mechanism (esm), perhaps the most important institutional innovation in the context of the Eurozone crisis.

The esm uses the combined capital contributions of the Member States as backing for the issuance of bonds, the proceeds of which are then loaned, at politically determined rates but subject to strict conditionality, to Member States that otherwise have lost access to the credit markets. Concerns about whether this fund might violate the ‘no bailout clause’ (Article 125 tfeu) were addressed in 2011 through an amendment to Article 136 tfeu, allowing the Eurozone countries to “establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole” and to grant financial assistance under strict conditionality.45 The Pringle judgment of the Court of Justice in 2012 provided an interpretation of the esm and the Article 136.3 tfeu amendment in compliance with EU law.46 In doing so, the Court upheld the validity of this legal by-product of the Eurozone crisis, even though it still operated primarily outside the EU legal framework.

Beyond the esm, the other major vehicle to address the deepening Eurozone crisis was of course the European Central Bank. In an unprecedented attempt ‘to save the euro’, the ecb effectively reinvented its role through a series of unconventional monetary operations – the Securities Market Programme (smp), the Outright Monetary Transactions (omt) programme (whose mere announcement had been enough to calm the markets), and the various efforts at quantitative easing (qe) at mid-decade, notably including the Public Sector Purchase Program (pspp). Through each of these programmes, the ecb attempted to provide needed liquidity to Eurozone countries experiencing financial and economic troubles. In pursuing these operations, an objective alliance between the (technocratic) ecb and the (juristocratic) Court of Justice proved crucial. Subject to conditions that to this point have been relatively easily satisfied (though this could change), the Court has recognized that these operations fall within the mandate of the ecb to guarantee price stability and, hence, are valid.47 Despite the seal of approval from the Court, concerns have nonetheless persisted about whether these actions by the ecb have potentially breached its powers,48 including an eventual determination by the German Federal Constitutional Court in 2020 that the pspp exceeded the scope of the ecb’s authority.49 The ecb has been forced to stretch the limits of its mandate in this way, however, precisely because of the lack of a fiscal capacity at the supranational level, justifying its efforts as a means of saving the emu, albeit without a specific mandate and clear accountability limits.50

Other funds and instruments backed by capital contributions from the Member States have also played a key role in addressing the crisis. For example, the European Investment Bank (eib), a body collectively owned by the Member States, was at various points activated during the crisis in order to help stimulate growth.51 Nationally-mobilized resources also provided the necessary start-up funding to the Single Resolution Fund (srf), a key component of the Single Resolution Mechanism (srm) within the European Banking Union.52 The srf is being gradually built up based on contributions from financial institutions, but in the interim, participating Member States are providing the necessary bridge financing for bank resolution under the terms of an intergovernmental agreement,53 with the esm providing a further ‘backstop’.54 Beyond these steps, the Member States (or at least those in the north) have demonstrated great reluctance to mobilize resources to complete the Banking Union, to the extent this would mean open-ended commitments to share fiscal resources with what they still perceive as their inadequately self-disciplined neighbours to the south. This explains, for example, the continuing opposition, led by Germany, to the adoption of a jointly-funded ‘European Deposit Insurance Scheme’ (edis) as part of the Banking Union, despite pleas from the ecb.55 If Europe is unable to adopt an edis, despite the seemingly compelling case,56 it is difficult to imagine the Member States reaching an agreement over other reforms that would imply an even greater autonomous fiscal capacity at the supranational level (e.g. a Europeanized unemployment insurance scheme).

3.2 The Eurozone Crisis and the Growing Power-Legitimacy Fracture in the Member States

The second key dimension of the European response to the Eurozone crisis consisted of intensified supranational surveillance as well as deeper coordination of Member-State fiscal and macroeconomic policies. At first glance, supranational regulatory authority in this domain seems modest – just the power to coordinate national policies. However, the Eurozone crisis led creditor states to demand that the EU undertake more direct supervision of the Member States’ exercise of their budgetary prerogatives. Depending on the fiscal and macroeconomic situation facing the particular Member State, each country sets its own medium-term budgetary objective, which the Commission takes as the ‘polar star’ for its biannual assessment. Subject to Council approval, the Commission then issues country-specific recommendations on the stability and the national reform programmes, and opinions, if any, on the draft budgetary plans.57 The Commission also has the power to sanction non-compliant Member States – though, as we shall see below, this power has never been exercised.

The surveillance created by this regime can be understood as an extension and intensification of the ‘pre-commitment’ system traditionally at the heart of European integration. The Member States have once again agreed to delegate authority to supranational agents to police their mutual legal commitments – in this case regarding fiscal discipline. But the enforcement of pre-commitments, i.e. the medium-term budgetary objective and the level of deficit and debt promised, “can often be intrusive and painful, in seeming derogation of sovereignty”.58 The so-called European and National Semesters operate according to a pre-defined schedule, regardless of national occurrences (e.g. governmental crisis, elections, etc.). Perhaps more importantly, in substance, the economic policy animating the system – based on fiscal rigour and austerity – is often experienced as a diktat from northern to southern countries, which in turn shapes the metabolic constitution both of the Member States as well as that of the EU (given its ‘parasitic’ nature).

As a consequence, the implementation of this regime of fiscal surveillance has a political and legal impact that is much more pervasive than mere coordination of domestic policies or mere policing of Member-State respect of their legal pre-commitments. For some Member States, the experience of this regime has been much more constraining than for others, particularly for those whose starting levels of public debt and deficits deviate significantly from the final common objective of the structural balanced budget. For such countries, the necessary budgetary policies to reach those targets have led to very strict structural and institutional reforms, with the well-known side-effects in terms of populist and Eurosceptic backlash.59

Relatedly, beyond the European and National Semesters, conditionality mechanisms have been established with regard to the Member States’ compliance with the new Eurozone fiscal rules in the use of cohesion funds. The relevant disbursement from the EU budget is made conditional on the observance of the reinforced Stability and Growth Pact. Following the 2013 amendments to the Common Provisions Regulation,60 in addition to ex ante conditionality imposed on the receipt of money from the structural and investment funds, ex post macroeconomic conditionality has also been introduced. In particular, a suspension of cohesion fund payments can be triggered when a Member State either fails to take appropriate action in relation with the excessive macroeconomic imbalance procedure or does not implement the corrections envisaged in the excessive deficit procedure.61 The use of the EU budget is now more closely linked to national fiscal choices but in a way that constrains and potentially impairs the ability of the Member States to exercise its fiscal powers as it sees fit.

The result has been to cast doubt on the autonomy of domestic metabolic constitutions, an impact even greater for those countries that have received financial assistance from the esm, under strict conditionality and subject to the additional supervision by the Troika. In programme countries, the capacity of national lawmakers to enact redistributive policies at domestic level has been severely constrained,62 through a system that many critics perceive to be nothing less than a top-down supranational technocracy without democratic legitimacy.63

From this perspective, the distortions introduced by this regime, taken to their logical extreme in programme countries, go well beyond the usual strengthening of national executives, typically understood as one of the key effects of the integration process.64 No single parliament is able effectively to scrutinize the intergovernmental bodies essential to this regime – the European Council, the Euro Summit, the Ecofin Council and the Eurogroup – much less a technocratic body like the Troika, comprised of representatives from the Commission, the ecb and the International Monetary Fund. Moreover, whatever rights the national parliaments may possess vis-à-vis their own finance minister or head of state or government, the collegial nature of decision-making of intergovernmental bodies generally places them beyond the reach of a particular national parliament. The only exceptions, of course, are certain privileged national parliaments in creditor countries that have successfully asserted their democratic rights in this regime. Consider, for example, the case of the national parliamentary oversight of the third rescue package to Greece between July and August 2015. After the Eurogroup had agreed on it, the package could not proceed unless approved by the Austrian, Finnish and German parliaments, as required by domestic constitutional law.65 In this way, the rights of these parliaments were unimpaired, thus allowing them to pass on the financial assistance to Greece, while the Greek parliament found itself subject to constraints in a Memorandum of Understanding (MoU) over which it had little advance input. This suggests serious asymmetries among Eurozone countries and their influence over resource mobilization in what is meant to be an optimal currency area.66

However, the rights of national parliaments as between debtor and creditor countries remained symmetrical in one crucial respect. Given the EU’s inability to mobilize resources of its own, as well as the insistence of the creditor states that they would only provide assistance through loans subject to strict conditionality, this meant that all substantial costs had to be borne by the debtor states themselves, through increased debt burdens, austerity, and associated ‘macroeconomic adjustment’. However, it should also be stressed that the dreaded MoUs that memorialized the Troika’s conditions in this regard – seemingly an expression of executive-technocratic power – were also, ironically, a sign of that power’s ultimate weakness, at least in terms of legitimate-compulsory mobilization. The Eurogroup and the Troika were able to set conditions on assistance but they were not able to fully displace national bodies in order to make those decisions themselves. They still needed to depend on the power and legitimacy of the debtor-state national parliament, even in an atmosphere of extreme crisis; hence the perpetual drama over the last decade in a country like Greece, in which the Eurogroup and the Troika repeatedly sought to compel the Greek parliament to take decisions contemplated by the MoU.67 The reason for this ultimate dependence was the simple fact that the management of these many crises, at a micro level, required not only executive and technocratic (i.e. administrative) power – of which the EU has a vast amount – but more importantly the capacity of legitimate compulsory mobilization of human and fiscal resources that only a Member-State parliament ultimately possesses.

This reality perhaps explains why, in the fiscal surveillance regime applicable even to non-programme countries, the Commission generally restricts itself to recommendations and opinions but, together with the Council, goes to great lengths to avoid using the sanctioning power that it (in theory) possesses against non-compliant Member States. Indeed, no sanctions have ever been imposed; moreover, since 2015 the European Commission has made ‘flexibility’68 the new mantra in the implementation of the revised fiscal and macroeconomic rules, which has had the effect of frequently authorizing national deviation from the medium-term budgetary objectives (also under circumstances that did not appear exceptional, temporary and unforeseeable). In this regard, Turkuler Isiksel has noted a persistent tension between the effort to limit the autonomy of national budgetary authorities (limiting) and the perception that those authorities in fact have license to exercise new powers or broader discretion (licensing).69 We would regard this tension as, in fact, an expression of the fractured metabolic constitution in the EU, and its ultimate dependence on the power and legitimacy of national parliaments to effectuate crucial goals of integration.

4 Will the Coronavirus Pandemic Response Serve as a ‘Critical Juncture’ in the Transformation of the EU’s Metabolic Constitution?

With the World Health Organization declaring a global pandemic on 11 March 2020, and with the growing number of infections and deaths throughout Europe, the Covid-19 crisis became the most serious challenge for the EU and its Member States since the Second World War. The arrival of the coronavirus pandemic acted as a sort of institutional and political earthquake. The re-imposition of border controls, along with the fact that many Member States were understandably focused on the internal impact of the crisis and thus seemingly insensitive to the needs of a pan-European response, all helped to raise questions about the unity and integrity of the EU. And yet, due to its “borderless nature, Covid-19 [became] a matter of common European interest since its first detection on the continent”.70

A major obstacle to an effective response, however, was Europe’s fractured metabolic constitution, in which wealthier and more financially secure Member States were in a much better position to mobilize the resources needed to address the crisis, both in terms of public health and economic response. One of the first steps the EU took, lacking resources of its own, was to temporarily free the Member States from EU fiscal constraints by activating the general ‘escape clause’ in budgetary surveillance regime.71 Similarly, in the area of state aids, the Commission also announced the relaxation of a panoply of restrictions on Member-State support to private businesses.72 As a consequence of these two steps, the Member States were able to pump nearly 2 trillion euros into the economy. However, as The Economist reported: “Half of this was in Germany: a problem if you are a producer based in a country that cannot afford to be so generous, but which must accept German-made goods”.73 Fairness and equity demanded a European response. But what kind?

Given these pressures, the question arose whether, in effect, the EU’s fractured metabolic constitution – dependent as it has always been on nationally mobilized resources – now faced what French President Emmanuel Macron called a ‘moment of truth’,74 or what academics often call a ‘critical juncture’.75 By this is meant the confluence of profoundly demanding social and political circumstances that can radically undermine existing institutional settlements, thus overcoming the natural lags that favour those settlements (‘hysteresis’), thereby opening the way for genuinely new institutional configurations.76 In the early months of the coronavirus pandemic, however, there was no telling what kind of Europe might emerge. In this first stage of the pandemic response, as with the Eurozone crisis before it, the ecb necessarily provided the most important supranational input. The ecb announced an ambitious asset purchase programme, the Pandemic Emergency Purchase Programme (pepp), to mobilize up to 750 billion euro in Eurozone assets and debt instruments: a very important signal for the financial markets. (The ecb later increased pepp by 600 billion euro for a total 1.350 trillion euro.)77 The pepp also once again pushed the ecb’s competences to their outer limits, just as in the Eurozone crisis. The ecb has been repeatedly forced to take on this sort of central role in addressing crises in the EU, as one commentator aptly noted at the time, for a very simple reason: “in Europe [it] is the only agency engaged in economic policy worthy of the name” and “is the one part of the complex European constitution that actually functions with real authority and clout as a federal institution”.78

What emerged out of the negotiations over the next several weeks, culminating in the announcement of the Next Generation EU (ngeu) recovery and resilience facility in July 2020, was undoubtedly a major achievement. The historic innovation – a ‘Eurobond’ in all but name – was the use of the mff as a temporary instrument of common borrowing and macroeconomic stabilization. Nonetheless, it is important not to exaggerate too much the impact of the agreement on the EU’s metabolic constitution. The increased borrowing is, at this stage, still envisioned as temporary and in any case ultimately backed by the fiscal mobilization capacities of the Member States severally, through their proportional obligations to the mff. No doubt, ngeu contemplates a series of new taxes (for example, on digital technology and single-use plastics) to join customs duties and a portion of vat as part of the EU’s own resources. But if and when they are in fact adopted, they will still need to be imposed and collected nationally, per the requirements of Article 311 tfeu. Indeed, in some countries (e.g. Austria and Germany), the national-parliamentary approval for these levies may require qualified majorities, the same needed to amend their respective Constitutions.79 Thus, in terms of the EU’s metabolic constitution, Next Generation EU still did not cross the crucial Rubicon, that of a proposed Europeanization of taxation authority to accompany the increased borrowing under the mff. The financial underpinnings of the new recovery fund would still be entirely in keeping with how the Member States financed the response to the Eurozone crisis over the prior decade – ultimately through their own fiscal capacities, whether directly or indirectly.

The mechanism set in place – EU debt issuance – is also not new.80 What is new, however, is the magnitude of that debt. Indeed, the EU is set to become one of “Europe’s largest bond issuers” in the financial markets, most likely triggering a transformation of European capital markets.81 The EU’s move towards debt-financed deficit spending is also historic in legal terms, given the long-standing interpretation of Article 310 tfeu as prohibiting the EU to finance its expenditures through borrowing.82 As such, given the explicit requirement of an EU balanced budget (again, in Article 310 tfeu), this shift may trigger, at least in the medium term, the creation of a real fiscal capacity at the EU level to make its budget sustainable.

This raises an interesting philosophical question, as one commentator quickly noted after the deal was announced: “whether … the EU can initiate sovereign fiscal capacity through public debt alone? Or does it also require tax revenue raising capacity?”83 Eventually, no doubt, any EU borrowing beyond the short-term and limited scale of Next Generation EU will need to be accompanied by autonomous taxing authority, which in turn would require treaty change. And, as this commentator rightly noted, any change of that magnitude would lay the groundwork for considerable political conflict in the future. Other commentators were more sanguine, seeing Next Generation EU as a vehicle for “reshap[ing] the EU’s political economy”: because “what can be done once can be done again”, this means that national leaders “have boarded the train towards more common taxation and cannot get off and turn back”.84

Time will tell. To turn this temporary instrument into a permanent feature of European political economy (shifting responsibility to macroeconomic stabilization to the EU, combined with authority to raise taxes) would indeed require a quite fundamental treaty change, something for which there clearly does not appear to be the political appetite. Thus, it is perhaps best to say that, even if the EU has not yet crossed the Rubicon, Next Generation EU has brought it right up to its banks. On the opposite shore is a new socio-political terrain, one marked by several more demanding macroeconomic and geopolitical features, whether completing emu, developing a genuine European security and defense capacity, or meeting the demands of the climate emergency that will no doubt reassert themselves once the pandemic has passed. These new challenges require something beyond the traditional forms of supranational governance in the EU; that is, something more than regulatory power and technocratic-juristocratic ‘pre-commitment’ mechanisms, combined with one-off decisions to create borrowing capacity. What these challenges will demand, in other words, will be something approaching both the power and legitimacy of genuinely autonomous metabolic constitution for the EU in its own right. Europe must find a way to transcend the fundamental contradiction in the EU’s fractured metabolic constitution, one perhaps only temporarily and partially reduced under Next Generation EU: “National institutions are increasingly constrained in the exercise of their constitutional authority but supranational institutions cannot fill the void because they are unable to transition to genuine constitutionalism – that is the autonomous capacity to mobilize fiscal and human resources in a compulsory fashion”.85

Conclusion: Taking Stock of Where We Are

Europe thus finds itself at a pivotal moment, potentially on the cusp of a genuine constitutional transformation but not there yet, at least not until the EU gains taxing authority in its own right to support increased borrowing capacity. There has been considerable debate over whether common borrowing, combined with distribution by grants, marks the arrival of a ‘Hamiltonian moment’ in the EU, though on this point, the sceptics have the better of the argument.86 Many observers fixate on debt-mutualization as the primary sign of such a moment, when in historical fact, the true Hamiltonian innovation of the founding period in the United States was the conferral of taxing authority on the federal government in the US Constitution.87 Such authority remains, as of this writing, a bridge too far for the EU to cross, precisely because the EU lacks the autonomous democratic and constitutional legitimacy to such a demanding form of sovereign power – once again, the inescapable power-legitimacy nexus in EU governance.88 Lacking such capacity, the fractured metabolic constitution compels the EU to rely on more convoluted means to mobilize fiscal resources. For precisely this reason, Next Generation EU is both promising yet also limited. The EU’s fractured metabolic constitution has, as with the Eurozone crisis before it, forced the EU into a complex exercise in political and financial engineering – an effort that could have been, if not entirely avoided, at least mitigated if the EU had both the power and legitimacy to mobilize fiscal resources on its own.

It is precisely for this reason that Hjalte Lokdam and Michael A. Wilkinson are right to be sceptical of Mario Draghi’s functionalist invocation of, in effect, a technocratic and juristocratic (i.e. administrative) potentia as a sufficient basis of governing legitimacy in Europe going forward. We have, in fact, been around this block many times before, stretching all the way back to the earliest years of the integration process in the post-war decades. For many advocates of European integration in the late 1940s and early 1950s, the seeming example of technocratic independence under the New Deal offered a justification for the delegation of regulatory power to autonomous supranational bodies. The New Deal represented, from this perspective, the triumph of functionalist governance – that is, governance that evolved as a function of the problems it sought to address, rather than being determined by seemingly outdated constitutional categories (‘separation of powers’ in the purported case of the New Deal, ‘national sovereignty’ in European integration). The irony, of course, was that Roosevelt’s New Deal was much less receptive, both in principle and practice, to the sort of technocratic independence that these advocates believed to be inevitable and desirable in the case of integration. Indeed, consistent with a more nuanced understanding of the New Deal model, European integration would eventually secure a durable institutional existence only after being brought more directly under the shared control and oversight of the national executives of the Member States.89

Contrary to expectations of functionalist (and later so-called neofunctionalist) theorists, European supranationalism did not evolve merely as a consequence of functional demands for technocratic independence. Rather, two additional dimensions of change also proved decisive: the political – or the defense of existing institutional advantages and/or the struggle to realize new ones –; and the cultural – or the mobilization of conceptions of ‘right’ or legitimate governance in the face of purported functional and political pressures for change. As a consequence of the interplay of all three dimensions – functional, political, and cultural – European integration ultimately settled on a form of governance in which the political oversight and control of national executives played a decisive role, a feature of European supranationalism that persists to this day. However, over the last several decades, this mediated legitimation through national executive oversight has been supplemented by national parliamentary and national judicial oversight – the other two crucial elements of the ‘post-war constitutional settlement of administrative governance’.90 It was only through all three forms of mediated legitimacy that the post-war constitutional settlement allowed Europe to reconcile the functional demands of administrative governance with the political and cultural requirements of democracy and constitutionalism, thus surmounting what Carl Schmitt had claimed was ‘insurmountable’.91

In the atmosphere of crisis over the last decade, however, this necessity of mediated legitimation through national bodies has deeply complicated European governance, given the needs to extensive resource mobilization to address the various crises. Europe thus faces a choice, It can either continue the authoritarian dérive described by Hjalte Lokdam and Michael A. Wilkinson – seeking to excise national parliaments and courts as sources of mediated legitimation in favor of an alliance of national executives with supranational technocracy and juristocracy – or it can seek to develop a sufficiently robust democratic and constitutional legitimacy of its own to support the shift in compulsory mobilization powers to the EU level. This genuine form of European democratic constitutionalism would, however, require the emergence of a genuine European demos operating in conjunction with the various national demoi.92 We are still a ways away from that point, but there are nonetheless encouraging signs of an increasing political-cultural transformation afoot, accelerated by the functional demands of the crisis precipitated by the pandemic.

This leads us to close, then, like both Francesco Martucci and Hjalte Lokdam and Michael A. Wilkinson, on a (very) cautiously optimistic note. For Martucci, the Covid-19 crisis has had the potential of liberating European politics from the “carcan de la règle”, indeed perhaps even giving rise, via ngeu, to “un centre de décision pour la politique économique prévue par le plan Werner”. For Hjalte Lokdam and Michael A. Wilkinson, the pandemic response “has created the possibility for Eurozone-wide programmes that potentially point in a different ideological direction, towards more socially inclined ends”. We would argue, in a similar vein, that the pandemic response also contains within it the potential seed of a genuinely metabolic constitution at the EU level. The common borrowing in the ngeu creates tangible incentives to ensure debt sustainability through greater coordination of national tax legislation. For the foreseeable future, this coordination will remain under the rubric of the ‘own resources’ decision adopted under Article 311 tfeu (requiring unanimity in the Council, mere consultation of the ep, and entry into force only upon the approval of the member states according to domestic constitutional requirements). Nonetheless, the obvious functional advantages of common borrowing may be sufficiently powerful enough to facilitate, over time, a de facto fiscal mobilization capacity in the EU that is much less fragmented among the Member States than it is today.

With that capacity, moreover, could come a kind of polity-building power that reaches well beyond the sort of technocratic and juristocratic ‘pre-commitment’ authority that has underpinned European integration up to this point. That, at least, is the ultimate potential of the ‘rule-of-law conditionality’ that the EU25 have sought to impose on Hungary and Poland in conjunction with the adoption of the ngeu.93 There are considerable potential obstacles to the success of this dynamic, to be sure, notably the obvious legal hurdles. Hungary and Poland pointed to a previously-undisclosed opinion of the Council Legal Service (cls) in 201894 to argue that any effort to enforce rule-of-law conditionality by way of a regulation adopted under Article 322(1)(a) tfeu would violate Article 7 teu as the sole means of such enforcement under the treaties.95 Commentators have harshly criticized the 2018 cls opinion,96 but the dispute recalls, as a legal matter, the very earliest of the so-called ‘constitutionalizing’ decisions of EU law in the 1960s. In Van Gend en Loos,97 the Court of Justice was confronted by a seemingly exclusive enforcement mechanism (the old Articles 169–170) but also had at its disposal a provision (the old Article 177) whose language was sufficiently capacious, even if somewhat vague, to ground an alternative enforcement mechanism. The Court opted for the latter precisely because of the functional advantages that this alternative enforcement mechanism provided to the cause of European integration.

Has the Court opted for the same approach here? The cjeu was under enormous political pressure from the EU25 as well as the ep to do so, given the cultural demand for rule-of-law conditionality in the distribution of the EU own resources, including the ngeu proceeds. In its judgments of 16 February 2022 on cases C-156/21 and C-157/21 (not yet reported), the cjeu (full court) confirmed the validity of the Regulation establishing a mechanism of horizontal conditionality with a view to protecting the EU financial interests against violations of the rule of law. While the Court grounded its reasoning in the protection of the EU budget, linking it precisely to Art. 322(1) TFEU, the EU judges clearly also linked the mobilization of EU resources to the principle of solidarity and the protection of the EU identity as grounded on the rule of law. Even though the timing and the effectivenness of the Regulation’s implementation still remains unclear as of this writing (Spring 2022), we can safely say that the CJEU has successfully tied the mobilization of fiscal resources at a genuinely ‘constitutional’ scale to the enforcement of core values on behalf of the polity as a whole. In doing so, the EU has taken a small but important step towards establishing a genuine European demos and thus transcending, in a metabolic sense, the fragility of the ‘as if’ constitutionalism that has characterized the integration project to date.98

Note on the Text and Acknowledgments

The present discussion draws from C. Fasone and P. L. Lindseth, « Europe’s Fractured Metabolic Constitution: From the Eurozone Crisis to the Coronavirus Response », luiss School of Government, sog Working Paper, n°61/2020 (October 2020, available at: https://sog.luiss.it/research/working-papers; last consulted on 12 February 2022). The authors would like to thank Nicholas Lindseth, BA 2021, Brown University, for his assistance in converting our working paper into this contribution.

1

See supra in this volume, F. Martucci, « Les racines historiques et théoriques de l’Union économique et monétaire ».

2

See supra in this volume, H. Lokdam & M. A. Wilkinson, « The European Economic Constitution in Crisis : A Conservative Transformation ? ».

3

See supra in this volume, F. Martucci, « Les racines historiques et théoriques de l’Union économique et monétaire », Subchapter 2.2.

4

Ed.: regarding the question of “authoritarian liberalism”, see also supra in this volume, Section 2 – The (Neo)Liberal Recapture of the Concept, and esp. W. Bonefeld, « Economic Constitution and Authoritarian Liberalism – Carl Schmitt and the idea of a “Sound Economy” » and the discussions by S. Audier (« Le néolibéralisme : Un “libéralisme autoritaire” néo-schmittien ? ») and V. Valentin (« L’idée de constitution économique et l’hypothèse du libéralisme autoritaire »).

5

Ed.: concerning the evolution of economic constitutionalism in the (neo)liberal discourse, see supra in this volume, T. Biebricher, « An Economic Constitution – Neoliberal Lineages ».

6

Ed.: see infra in this volume, T. Biscahie & S. Gill, « Three Dialectics of Global Governance and the Future of New Constitutionalism ».

7

Ed.: in the introduction (supra in this volume, G. Grégoire & X. Miny, « Introduction – La Constitution économique : Approche contextuelle et perspectives interdisciplinaires »), we (Editors) share this view when we describe the EU’s ‘constitutional’ rhetoric as ‘catachrèse’ (catachresis), i.e. an “improper use of words; application of a term to a thing which it does not properly denote; abuse or perversion of a trope or metaphor” (Oxford English Dictionary).

8

See A. E. Stie, Democratic Decision-Making in the EU: Technocracy in Disguise?, Abingdon, Routledge, 2012. For earlier formulations of this administrative/technocratic perspective, see P. L. Lindseth, Power and Legitimacy: Reconciling Europe and the Nation-State, Oxford, Oxford University Press, 2010; P. L. Lindseth, « Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community », Columbia Law Review, 1999, vol. 99, n°3, pp. 628–738. See also, more recently with regard to the EP, P. L. Lindseth, « Executives, Legislatures and the Semantics of EU Public Law: A Pandemic-Inflected Perspective », in D. Fromage and A. Herranz-Surrallés (eds.), Executive-Legislative (Im)balance in the European Union, Oxford, Hart Publishing 2021, pp. 303–327.

9

For further theoretical background on the role of ‘pre-commitment’ in governance beyond the state, see P. L. Lindseth, « Theorizing Backlash: Supranational Governance and International Investment Law and Arbitration in Comparative Perspective », Journal of World Investment and Trade, 2020, vol. 21, n°1, pp. 34–70.

10

See P. L. Lindseth, « The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in Germany and France, 1920s-1950s », Yale Law Journal 2004, vol. 113, n°7, pp. 1341–1415.

11

On this concept, see, e.g., K. Tuori, European Constitutionalism, Cambridge, Cambridge University Press, 2015, p. 42. For further exploration of the concept, see generally P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism. Review of K. Tuori, European Constitutionalism (Cambridge University Press, 2015) », European Law Journal, 2016, vol. 22, n° 5, pp. 696‑718.

12

ecj, 23 April 1986, Parti écologiste ‘Les Verts’ v European Parliament, Case 294/83 (ecli:eu:c:1986:166), para 23.

13

This is particularly the case with regard to so-called ‘rule of law backsliding’. See, e.g., D. Kochenov and L. Pech, « Monitoring and Enforcement of the Rule of Law in the EU: Rhetoric and Reality », European Constitutional Law Review, 2015, vol. 11, n°3, pp. 512–540. See also J. Komárek (ed.), The EU Constitutional Imagination: Between Ideology and Utopia, Oxford, Oxford University Press, forthcoming.

14

See R. Schütze, « Constitutionalism », in R. Masterman and R. Schütze (eds.), The Cambridge Companion to Comparative Constitutional Law, Cambridge, Cambridge University Press, 2019, pp. 40–66.

15

M. Poiares Maduro, « Passion and Reason in European Integration », FCE 3/10 Forum Constitutionis Europae (Humboldt University, Walter Hallstein-Institut Für Europäisches Verfassungsrecht 2010), p. 6.

16

R. Bellamy, A republican Europe of states. Cosmopolitanism, intergovernmentalism and democracy in the EU, Cambridge, Cambridge University Press 2019, pp. 174–208. Ed.: the project of a Europe of peace through economic integration (and the resulting balance of power) can already be found in the past, notably in the theories of the French Physiocrats of the 18th century (see supra in this volume, P. Steiner, « Les Physiocrates, l’économie politique, l’Europe »).

17

P. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », in G. Davies and M. Avbelj (eds.), Research handbook on legal pluralism and EU law, Cheltenham (UK)/Northampton (MA), Edward Elgar, 2018, pp. 223–242, esp. p. 227.

18

N. Scicluna, « Politicization without democratization: How the Eurozone crisis is transforming EU law and politics », International Journal of Constitutional Law, 2014, vol. 12, n°3, pp. 545–571, esp. pp. 562 ff.

19

Article 3 of Council Decision 2014/335 on the Union’s own resources.

20

C. Fasone and N. Lupo, « The Union Budget and the Budgetary Procedure », in R. Schütze and T. Tridimas (eds.), Oxford Principles of European Union Law, Vol. I, Oxford, Oxford University Press, 2018, pp. 809 ff., esp. pp. 814–816.

21

R. Crowe, « The European Budgetary Galaxy », European Constitutional Law Review, 2017, vol. 13, n°3, pp. 428–452, esp. pp. 432–433.

22

M. Dawson and F. De Witte, « Constitutional Balance in the EU after the Euro‐Crisis », Modern Law Review, 2013, vol. 76, n°5, pp. 817–844; A. Menéndez, « The Existential Crisis of the European Union », German Law Journal, 2013, vol. 14, n°5, pp. 453–526.

23

See A. Verdun, « An “Asymmetrical” Economic and Monetary Union in the EU: Perceptions of Monetary Authorities and Social Partners », Journal of European Integration, 1996, vol. 20, n°1, pp. 59–81.

24

P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 223.

25

See, amongst many, G. Majone, Regulating Europe, London/New York, Routledge, 1996, pp. 47–80 and pp. 265–301.

26

See T. Wozniakowski, « Why the sovereign debt crisis could lead to a federal fiscal union: the paradoxical origins of fiscalization in the United States and insights for the European Union », Journal of European Public Policy, 2018, vol. 25, n°4, pp. 630–649, esp. p. 631.

27

P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », in F. Bignami (ed.), EU Law in Populist Times. Crises and Prospects, Cambridge, Cambridge University Press 2019, pp. 505–530, esp. pp. 508–510.

28

See G. Capoccia, « Critical Junctures and Institutional Change », in J. Mahoney and K. Thelen (eds.), Advances in Comparative-Historical Analysis, Cambridge, Cambridge University Press 2015, pp. 147–179.

29

D. Curtin, « The Constitutional Structure of the Union: A Europe of Bits and Pieces », Common Market Law Review, 1993, vol. 30, n°1, pp. 17–69.

30

P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 235; V. A. Schmidt, Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone, Oxford, Oxford University Press 2020, pp. 57–66, who talks of a ‘split-level legitimacy’.

31

See P. Lindseth, « Executives, Legislatures, and the Semantics of EU Public Law», op. cit.

32

Not to mention that EU public powers are often exercised by or together with private actors: See A. Vauchez, « In Search of Europe’s Phantom Public. “Public-ness” and the European Union », German Law Journal, 2020, vol. 21, n°1, pp. 46–50. For more details on the ambiguous and incomplete ‘constitutionalism’ in the EU, see P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism », op. cit.

33

P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 236.

34

Of course, it also lacks constituent power on its own, though it has been argued that the EU enjoys a pouvoir constituant mixte: see J. Habermas, « Citizen and State Equality in a Supranational Political Community: Degressive Proportionality and the Pouvoir Constituant Mixte », Journal of Common Market Studies, 2017, vol. 55, n°2, pp. 171–182.

35

Ed.: see also infra in this volume, C. Joerges, « Economic Constitutionalism and “The Political” of “The Economic” ».

36

On this concept, see, e.g., K. Tuori, European Constitutionalism, op. cit., p. 42.

37

See P. L. Lindseth, « The metabolic constitution and the limits of EU legal pluralism », op. cit., p. 240.

38

P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., p. 522–525.

39

For a succinct overview of that trilemma, see D. Rodrik, « The Inescapable Trilemma of the World Economy » (Dani Rodrik’s weblog, 27 June 2007), available at: http://rodrik.typepad.com/dani_rodriks_weblog/2007/06/the-inescapable.html (last consulted on 12 February 2022).

40

Ibid.

41

See the passage above accompanying note 30.

42

See P. L. Lindseth, Power and Legitimacy, op. cit.

43

See generally P. L. Lindseth, Power and Legitimacy, op. cit.

44

Council Regulation 407/2010 of 11 May 2010 establishing a European Financial Stabilisation Mechanism. The first rescue programme to Greece in 2010 was also partly financed through bilateral loans by Member States. See C. Kilpatrick, « Are the Bailouts Immune to EU Social Challenge Because They Are Not EU Law? », European Constitutional Law Review, 2014, vol. 10, n°3, pp. 393–421, esp. pp. 398 ff.

45

European Council Decision 2011/199 of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro.

46

ecj, 27 November 2012, Thomas Pringle v Government of Ireland and Others, Case C-370/12 (ecli:eu:c:2012:756). See T. Beukers and B. de Witte, « The Court of Justice approves the creation of the European Stability Mechanism: Pringle », Common Market Law Review, 2013, Vol. 50, n° 3, pp. 805–848; A. Hinarejos, « The Court of Justice of the EU and the Legality of the European Stability Mechanism », Cambridge Law Journal, 2013, vol. 72, n°2, pp. 237–240.

47

ecj, 16 June 2015, Peter Gauweiler and Others v Deutscher Bundestag, Case C-62/14 (ecli:eu:c:2015:400); ecj, 11 December 2018, Heinrich Weiss and Others, Case C-493/17 (ecli:eu:c:2018:1000).

48

See M. Dawson, A. Maricut and A. Bobic, « Reconciling Independence and accountability at the European Central Bank: The False Promise of Proceduralism », European Law Journal, 2019, vol. 25, pp. 75–93, esp. pp. 79 ff.

49

BVerfG, 5 May 2020, pspp, 2 BvR 859/15 (ecli:de:bVerfG:2020:rs20200505.2bvr085915).

50

P. Lindseth, « Power and Legitimacy in the Eurozone: Can Integration and Democracy Be Reconciled? », in M. Adams, F. Fabbrini and P. Larouche (eds.), The Constitutionalization of European Budgetary Constraints, Oxford, Hart Publishing, 2014, pp. 379 – 398, esp. pp. 392–393 and V. A. Schmidt, Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone, op. cit., pp. 150–170.

51

See the so-called ‘Juncker Plan’ and the European Parliament and Council Regulation 2015/1017, On the European Fund for Strategic Investments, the European Investment Advisory Hub and the European Investment Project Portal and Amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013.

52

N. Xanthoulis, « Single Resolution Fund and Emergency Liquidity Assistance: Status Quo and Reform Perspectives On Emergency Financial Support in the Banking Union », in G. Lo Schiavo (ed.), The European Banking Union and the Role of Law, Cheltenham (UK)/Northampton (MA), Edward Elgar, 2019, pp. 273–294.

53

See generally « Single Resolution Mechanism- Consilium », European Council website, available at: http://www.consilium.europa.eu/en/policies/banking-union/single-resolution-mechanism/ (last consulted on 12 February 2022).

54

P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., p. 516.The use of the esm to further supplement the srf, if needed, has been repeatedly proposed since the Euro Summit Meeting of 29 June 2018, available at: http://www.consilium.europa.eu/media/35999/29-euro-summit-statement-en.pdf (last consulted on 12 February 2022).

55

« ECB’s Draghi Renews Plea for Euro Area Deposit Insurance », Reuters, 9 July 2018, available at: https://uk.reuters.com/article/us-ecb-policy-draghi/ecbs-draghi-pleads-with-parliament-for-euro-area-deposit-insurance-idUKKBN1JZ1KW (last consulted on 12 February 2022).

56

J. Carmassi, S. Dobkowitz, J. Evrard, L. Parisi, A. Silva and M. Wedow, « Completing the Banking Union with a European Deposit Insurance Scheme: Who Is Afraid of Cross-Subsidisation? », Occasional Paper Series, European Central Bank, April 2018, available at: https://www.ecb.europa.eu/pub/pdf/scpops/ecb.op208.en.pdf (last consulted on 12 February 2022).

57

See, in particular, Regulation 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies and Regulation 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances (part of the so-called ‘six-pack’); Regulation 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area (part of the so-called ‘two-pack’).

58

P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., p. 507.

59

B. Bugaric, « The Populist Backlash Against Europe: Why Only Alternative Economic and Social Policies Can Stop the Rise of Populism in Europe », in F. Bignami (ed.), EU Law in Populist Times, op. cit., pp. 477–504.

60

See Regulation 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (ec) No 1083/2006.

61

C. Scheinert and C. van Lierop, Linking cohesion policy and the European Semester: Partnership and multi-level governance to boost investment and structural reforms, European Parliamentary Research Service, pe 644.208 – December 2019, p. 19.

62

See F. Nicoli, « Democratic Legitimacy in the Era of Fiscal Integration », Journal of European Integration, 2017, vol. 39, n°4, pp. 389–404, esp. p. 393–394.

63

See N. Scicluna, « Politicization without democratization: How the Eurozone crisis is transforming EU law and politics », op. cit., pp. 562 ff.

64

D. Curtin, « Challenging Executive Dominance in European Democracy », Modern Law Review, 2014, vol. 77, n°1, pp. 1–32, esp. pp. 2–3.

65

M. Moschella, « When Some Are More Equal than Others: National Parliaments and Intergovernmental Bailout Negotiations in the Eurozone », Government and Opposition, 2017, vol. 52, n°2, pp. 239–265, esp. pp. 253 ff.

66

C. Fasone, « Eurozone, non-Eurozone and “troubled asymmetries” among national parliaments in the EU. Why and to what extent this is of concern », Perspective on Federalism, 2014, vol. 6, n°3, pp. 1–41, esp. pp. 15 ff.

67

M. Markakis, Accountability in the Economic and Monetary Union. Foundations, Policy, and Governance, Oxford, Oxford University Press, 2020, pp. 85–102.

68

See European Commission, Communication on making the best use of flexibility within the existing rule of the Stability and Growth Pact, com (2015) 12 def., 13 January 2015; Communication on the review of the flexibility under the Stability and Growth Pact, com (2018) 335 def., 23 May 2018. On the flexibility shown by the Commission in its first assessment on the implementation of the Treaty on Stability, Economic Coordination and Governance in the Economic and Monetary Union, see European Commission Communication, The Fiscal Compact Taking Stock, C(2017) 1200 final, 21 February 2017, p. 4.

69

T. Isiksel, « Constitutionalism as Limitation and Licence », in T. Ginsburg, N. D. Rosen and G. Vanberg (eds.), Constitutions in Times of Financial Crisis, Cambridge, Cambridge University Press, 2019, pp. 187–203, esp. pp. 198 ff.

70

A. Alemanno, « Testing the Limits of EU Health Emergency Power », Verfassungsblog, 18 April 2020, available at: https://verfassungsblog.de/testing-the-limits-of-eu-health-emergency-power/ (last consulted on 12 February 2022).

71

See European Commission Communication on the activation of the general escape clause of the Stability and Growth Pact, Brussels, com (2020) 123 final, 20 March 2020. See also the Statement of EU Ministers of Finance on the Stability and Growth Pact in Light of the covid-19 Crisis, 23 March 2020, available at: https://www.consilium.europa.eu/en/press/press-releases/2020/03/23/statement-of-eu-ministers-of-finance-on-the-stability-and-growth-pact-in-light-of-the-covid-19-crisis/pdf (last consulted on 12 February 2022).

72

See European Commission, Communication on Coordinated economic response to the COVID-19 Outbreak, com (2020) 112 final, Brussels, 13 March 2020, and generally the State Aid Temporary Network: https://ec.europa.eu/competition-policy/state-aid/coronavirus/temporary-framework_en (last consulted on 12 February 2022).

73

See « The European Union Is Having a Bad Crisis », The Economist, 14 May 2020, available at: https://www.economist.com/leaders/2020/05/14/the-european-union-is-having-a-bad-crisis (last consulted on 12 February 2022). See also J. Brunsden, S. Fleming and M. Peel, « Crisis in Europe: Von Der Leyen’s Audacious Bid for New Powers », Financial Times, 18 May 2020, available at: https://www.ft.com/content/775c4db2-4e3d-426f-b937-243f0673cc14 (last consulted on 12 February 2022).

74

E. Macron, « Transcript: “We Are at a Moment of Truth” (English) », Financial Times, 17 April 2020, available at: https://www.ft.com/content/317b4f61-672e-4c4b-b816-71e0ff63cab2 (last consulted on 12 February 2022).

75

See eg G. Capoccia, « Critical Junctures and Institutional Change », op. cit., p. 147.

76

For elaboration of the concepts of ‘critical juncture’ and ‘hysteresis’ in the context of the European integration, see P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit., pp. 520–524.

77

See, ecb, Monetary Policy Decisions by the Governing Council of the ecb, Press Release, 4 June 2020, available at: https://www.ecb.europa.eu/press/pr/date/2020/html/ecb.mp200604~a307d3429c.en.html (last consulted on 12 February 2022).

78

A. Tooze, « The Death of the Central Bank Myth », Foreign Policy, 13 May 2020, available at: https://foreignpolicy.com/2020/05/13/european-central-bank-myth-monetary-policy-german-court-ruling/ (last consulted on 12 February 2022).

79

See L.F.M. Besselink, M. Claes, Š. Imamović and J.H. Reestman, National Constitutional Avenues for Further Integration, Study requested by the European Parliament’s Committees on Legal Affairs and on Constitutional Affairs, pe 493.046, 2014, pp. 117 and 199.

80

G.L. Tosato, « The Recovery Fund: Legal Issues », LUISS School of European Political Economy, Policy Brief 23/2020, 1 May 2020, p. 3, available at: https://sep.luiss.it/sites/sep.luiss.it/files/The%20Recovery%20Fund.%20Legal%20Issues.pdf (last consulted on 12 February 2022).

81

T. Stubbington and M. Arnold, « Investors hail Brussels as a new force in bond markets », Financial Times, 22 July 2020, available at: https://www.ft.com/content/da0f71e4-e629-404d-ba65-fe1dcf3d4a14 (last consulted on 12 February 2022).

82

P. Leino-Sandberg, « Who is ultra vires now? The EU’s legal U-turn in interpreting Article 310 TFEU », Verfassungsblog, 18 June 2020, available at: https://verfassungsblog.de/who-is-ultra-vires-now-the-eus-legal-u-turn-in-interpreting-article-310-tfeu/ (last consulted on 12 February 2022).

83

A. Regan, @Aidan_Regan, 23 July 2020, 9:02 am edt, available at: https://twitter.com/Aidan_Regan/status/1286288755926667265?s=20 (last consulted on 12 February 2022).

84

M. Sandbu, « EU crosses the Rubicon with its emergency recovery fund », Financial Times, 22 July 2020.

85

P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism », op. cit., p. 701. Indeed, as Lokdam and Wilkinson point out, this contradiction was explicitly designed into the Maastricht Treaty, even if its full implications were not acknowledged: “As Karl Otto Pöhl, then president of the Deutsche Bundesbank, put it in the context of the Maastricht negotiations: emu would ‘necessitate the surrender of sovereignty by the individual member states, but this need not mean corresponding gains in Community authority’”. This gave rise to what Martucci calls the ‘fundamental asymmetry’ at the heart of emu, between a supranationalized monetary policy and (in principle) still-nationalized economic policy.

86

As Wofgang Münchau (@EuroBriefing) tweeted soon after the Macron-Merkel agreement on joint debt in May 2020: “A useful first step, but please spare us all this Hamilton nonsense” (9:02 cet, 19 May 2020), available at: https://twitter.com/EuroBriefing/status/1262639673043816448?s=20 (last consulted on 12 February 2022). See also S. Kapoor, « This Isn’t Europe’s “Hamilton” Moment », Politico.eu, 22 May 2020, available at: https://www.politico.eu/article/this-isnt-europes-hamilton-moment/ (last consulted on 12 February 2022).

87

See generally M.M. Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State, Oxford University Press, 2003; see also P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit.

88

Again, see the passage above accompanying note 30.

89

This story is recounted in detail in P. L. Lindseth, « Transatlantic Functionalism: New Deal Models and European Integration », Critical Analysis of Law, vol. 2, n°1, 2015, pp.83–105.

90

See generally P. L. Lindseth, Power and Legitimacy, op. cit.

91

C. Schmitt, « Vergleichender Überblick über die neueste Entwicklung des Problems der gesetzgeberischen Ermächtigungen (Legislative Delegationen) », Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1936, vol. 6, pp. 252–268, esp. p. 257. For further discussion, see P.L. Lindseth, Power and Legitimacy, op. cit., pp. 89–90. Ed.: see also supra in this volume, P.C. Caldwell, « The Concept and Politics of the Economic Constitution ».

92

P. Lindseth, « The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance », op. cit.

93

See generally P. L. Lindseth and C. Fasone, « Rule-of-Law Conditionality and Resource Mobilization – the Foundations of a Genuinely “Constitutional” EU? », Verfassungsblog 11 December 2020, available at: https://verfassungsblog.de/rule-of-law-conditionality-and-resource-mobilization-the-foundations-of-a-genuinely-constitutional-eu/ (last consulted on 12 February 2022).

94

Council of the EU, Opinion of the Legal Service dated 25 October 2018 on the Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalized deficiencies as regards the rule of law in the Member States- Compatibility with the EU Treaties (2018), 2018/0136(cod), available at: https://drive.google.com/file/d/1Bl1roGM0KLEUU7koVUudRglsZh-EMIvL7/view (last consulted on 12 February 2022).

95

Joint Declaration of the Prime Minister of Poland and the Prime Minister of Hungary, About Hungary, 26 November 2020, available at: https://abouthungary.hu/news-in-brief/heres-the-joint-declaration-of-the-prime-minister-of-poland-and-the-prime-minister-of-hungary (last consulted on 12 February 2022).

96

See K. Scheppele, L. Pech and D. Kelemen, « Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU budget-related rule of law mechanism », Verfassungsblog, 12 November 2018, available at: https://verfassungsblog.de/never-missing-an-opportunity-to-miss-an-opportunity-the-council-legal-service-opinion-on-the-commissions-eu-budget-related-rule-of-law-mechanism/ (last consulted on 12 February 2022).

97

ecj, Judgment of 5 February 1963, van Gend en Loos, Case 26/62 (eu:c:1963:1), 1963 e.c.r. 1.

98

See generally P.L. Lindseth, « The Perils of ‘As If’ European Constitutionalism », op. cit.

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