Ten years ago, as the European Constitutional Treaty was made ready for signature, this journal was made ready for launching. Both events would take place at the end of October 2004. Our first issue was, of course, devoted to the Treaty. It broke down the document's substance into twenty-four key topics, each dealt with in turn by the members of the editorial and the advisory boards. From that first issue, the course of this journal would become inspired less by the document, however, than by the events concerning the constitutional settlement as it evolved for the Union.

Time appears in the development of law in several capacities. One of its powers is to provide relief for courts gridlocked in contradictory claims of hierarchy. That is the topic of this editorial. A showcase is provided by the Melki saga, as it recently unfolded in a rich and rushed contention between the French courts and the Court of Justice of the European Union.

The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, more commonly known as the Fiscal Compact, and the Treaty establishing the European Stability Mechanism (ESM) are closely linked in several ways. Both treaties are formally placed outside the European Union framework, but substantively govern Union matters. Together they are designed to combat the sovereign debt crisis which has been ravaging the European Union for years now. The Fiscal Compact does so by enhancing and sharpening budgetary discipline in the Eurozone states, the ESM Treaty by offering assistance to Eurozone states in financial distress. To receive financial aid from the ESM, states not only need to have ratified the Fiscal Compact, but also to have implemented a balanced budget rule in their national law in the way the Compact demands. Apart from combating the crisis, the Treaties also bring reforms to the Eurozone; they express the wish of the signatory parties to share their destinies in new ways.

On the way to its decision of 7 September 2011 about aid measures for Greece and the euro rescue package, the Bundesverfassungsgericht found itself in the middle of a storm. It had the option of helping the winds blow away the European currency altogether. Instead the Court showed restraint and responsibility towards both the German and the European constitutions. In doing so it gave expression not only to the limits of the law in a state of overwhelming emergency, but also to some of the creative particulars of the situation.

At the time of writing of this editorial, in the high summer of 2011, the ‘market forces” are meeting up for an attack on the first major member of the Eurozone, Italy. It begins, as has now become familiar, with a rise in the rate of interest that a country has to pay for money to service its sovereign debt. Above a critical percentage, around seven in this case, the servicing of its debt, compounded with the loss of tax income due to a slackening economy, will send the country into the downward spiral of ever-increasing debt. The perspective of a possible default in turn will send the interest rate further upward, pushing the country into a more certain default, and so on. It is a self-fulfilling perspective.

[Political representation] is the basis of modern representative democracy. Older and less sophisticated forms, such as direct democracy, subsist marginally, even if they keep exerting a certain attraction. But representative democracy does not carry the self-evident authority it once had. Like every modern institution it is under challenge and consequently needs to be defended. In actual politics, the defence often takes the form of discussion of the merits of one system over the other and of proposals for change. The part of this defence appertaining to constitutional scholarship is not concerned primarily with proposals and changes. It is, before all, to brush up the fundamentals underlying representative democracy, on the basis of topical issues.

There are three current issues upon which we would like to draw attention. They are: equality in structuring electoral systems, the processes of electoral reform and the rise of non-majoritarian institutions versus parliamentary democracy.

The first punctual question arising is how, in its (single) constitutional being, a body such as the Union combines its constituent roots in the original founding authorities (the states) with those, autonomous, in its own institutions. These are the ECJ for interpretation; the political institutions for practice and convention. In other words, what is the actual relationship, under the urge of change, between the states as treaty masters and the European Council, the Council, the Parliament and the Court? Secondly, there is the question as to how these shared constituent roots reflect not on constitutional change but on the day-to-day legislative and executive functioning of the Union's body politic. The coming constitutional settlement on the euro's financial support mechanism will not only consist of a new treaty. It will also take the form of secondary legislation and case-law. A third, most fundamental, question is how this ever-unfinished constitutional situation, imperfect by definition, will ultimately allow the development of a sound relationship between the authorities and the people, a relationship which is at the heart of any constitutional settlement. The last question (for now) sends us back to the one put in a previous editorial (in issue 1 of this year). It is: how to account for this incomplete and urged situation in a single and coherent constitutional reading?

Constituent power of the courts, in dialogue, accommodation or even collaboration, has become undeniable. It raises at least two points for scholarship to contemplate. First, what is the foundation of this power in terms of classical constitutional theory? Second, instead of or apart from the courts and their interactions: what is the relationship, in this constituent activity, between the courts and the political institutions, including the people?

We as constitutionalists owe it to ourselves and even to the 500 million other citizens of a member state and of the Union at the same time, to come up with a legally and constitutionally readable understanding of the situation. It must not be one suffering from the split between international and domestic public law. It must not mystify the Union as a completely original structure, intelligible only in its own terms. Such understanding should encompass not only the limits but also the logic of the situation; not only its mechanics but also its evolution. It should be intelligible for the public. It should allow for the multiple dualities of loyalty, of function, of legitimacy. It should allow for shared authority. Constitutional thought is well equipped to deal with actual duality and ambivalence. These characteristics of the Union are real and are here to stay.

One of the most remarkable results of the elections for the European Parliament on 4–7 June 2009 is that the Swedish Piratpartiet won one seat, to which another will be added if the Treaty of Lisbon enters into force. One of the aims of this party is a reform of copyright law to restore the, in its eyes, lost balance between the potentially conflicting interests of creating and spreading culture. The party strives for, among other things, the decriminalisation of all non-commercial copying and use of copyrighted material on the internet.

A glimpse of EU government

When president Sarkozy said, before the European Parliament on 16 December 2008, that the French presidency had allowed the European institutions to function at full capacity and successfully, he corrected a widely held image. The image, proffered in the media and in even better informed circles, was that he, Nicolas Sarkozy, happening into a repetition of crises which plunged him into his element, had personally gone around to solve one crisis after the other. According to Sarkozy himself, that was not the case. It was the European states, the Brussels institutions and the Parliament that had for once taken their responsibility and had acted.

‘The Law of Laws’ – Overcoming Pluralism

Editorials in this journal are meant not to comment on acts or events, even if these take the form of judicial rulings or legislative acts. They are meant to point at the events' potential for constitutional scholarship; to indicate and propose new lines of research. The Kadi judgments of the Court of Justice's two instances, discussed in this issue by Stefan Griller, offer such an occasion. They point at the problem of relationships between legal orders. Can these best be understood under the now familiar palliative terms of ‘dialogue’ and ‘accommodation’? There is both reason and reward in looking for a keener articulation of the relationships. That is the contention of this editorial.

The difference

On 13 December 2007, after a remarkable acceleration of the process under the German and Portuguese presidencies, representatives of the member states put pen to paper and signed the Treaty of Lisbon. Much of the ensuing debate, both in legal circles and among the general public, has centred on its abandonment of the ‘constitutional concept’.

‘The functioning of the Union shall be founded on representative democracy.’ This the new Union Treaty echoes from the Constitutional Treaty. ‘Citizens are directly represented at Union level in the European Parliament.’ It means that the Union pretends to be a democracy and challenges the thesis, held by some, that democracy cannot be applied to an international organization. The mere ambition does not, however, answer the Union's shortcomings in terms of democracy.