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Book contents

2 - Demos Obstacles to European Constitutionalization

Published online by Cambridge University Press:  21 September 2020

Markus W. Gehring
Affiliation:
University of Cambridge

Summary

One of the most fundamental obstacles to EU constitutionalization is said to be the lack of a European demos, which is seen as a precondition for any constitutional system.The term ‘demos’ originally referred to the common people of an ancient Greek state. Today, demos can describe the populace of a democracy, as a political unit. European Member State courts, such as the GFCC, have raised prominent concerns that further constitutionalization is constrained by the absence, in Europe, of a common attachment as an entity; they emphasize that there is no ‘European people’ and no future possibility thereof, meaning that the final say in constitutional matters will always rest with each European Member State.

Type
Chapter
Information
Europe's Second Constitution
Crisis, Courts and Community
, pp. 58 - 100
Publisher: Cambridge University Press
Print publication year: 2020

2.1 The Importance of Demos

One of the most fundamental obstacles to EU constitutionalization is said to be the lack of a European demos, which is seen as a precondition for any constitutional system.Footnote 1 The term ‘demos’ originally referred to the common people of an ancient Greek state. Today, demos can describe the populace of a democracy, as a political unit.Footnote 2 European Member State courts, such as the GFCC, have raised prominent concerns that further constitutionalization is constrained by the absence, in Europe, of a common attachment as an entity; they emphasize that there is no ‘European people’ and no future possibility thereof, meaning that the final say in constitutional matters will always rest with each European Member State.Footnote 3 In particular, as argued by the GFCC in its Maastricht decision, only a State has a people (Staatsvolk) and only a people with a certain level of what the judges called ‘homogeneity’ (Homogenität)Footnote 4 can form the basis for democratic decision-making. The GFCC found:

If the peoples of the individual States (as is true at present) convey democratic legitimation via the national parliaments, then limits are imposed, by the principle of democracy, on an extension of the functions and powers of the European Communities. State power in each of the States emanates from the people of that State. The States require sufficient areas of significant responsibility of their own, areas in which the people of the State concerned may develop and express itself within a process of forming political will which it legitimates and controls, in order to give legal expression to those matters which concern that people on a relatively homogenous basis spiritually, socially, and politically.Footnote 5

These criteria are hardly well delineated and could rest upon nothing more than an impoverished understanding of the nature of a federal polity. The GFCC’s emphasis on broad notions of spiritual, social and political homogeneity raised questions about the actual contours of such a requirement. In its Lisbon decision, the GFCC further explained:

Even if due to the great successes of European integration, a joint European public that engages in an issue-related cooperation in the rooms of resonance of their respective states is evidently growing (see on this already BVerfGE 89, 155 185; Trenz, Europa in den Medien, Die europäische Integration im Spiegel nationaler Öffentlichkeit, 2005), it cannot be overlooked, however, that the public perception of factual issues and of political leaders remains connected to a considerable extent to patterns of identification which are related to the nation-state, language, history and culture.Footnote 6

The GFCC’s standard is therefore high. Demos alone is insufficient. Even if a European demos could be shown to exist, it would not be enough due to perceptions held by the publics of the European Member States. This perspective arguably reveals more about the GFCC than about the status of European integration and demonstrates, especially when compared to the constitutional reality in federal states, that, during a certain period, the GFCC did not conceive of or really contemplate the possibility of the European Union developing into a federal polity. In the eyes of such courts, it thus follows that the European Union cannot become more than a confederation of states (Staatenverbund). This concept was defined by the GFCC not in its Maastricht decision but in its Lisbon decision, where it further explained: ‘The concept of “Verbund” covers a close long-term association of states which remain sovereign, a treaty-based association which exercises public authority, but whose fundamental order is subject to the decision-making power of the Member States and in which the peoples, i.e. the citizens, of the Member States, remain the subjects of democratic legitimation.’Footnote 7 Indeed, perhaps this question was deliberately raised by the GFCC in order to underline its deeply held conviction – shared even by liberal constitutional lawyers in Germany – that the Member States of the EU alone have been, are and will continue to be the only ultimate source of democratic legitimacy.Footnote 8 The GFCC, it appears, was convinced that only a people can engage in democratic decision-making. From this view, only nation states can have demos and, therefore, the European Union cannot be democratic or further constitutionalized.

This chapter analyses this obstacle to European constitutionalization, exploring the contours of the demos debate through a consideration of related EU jurisprudence and in light of the experiences of other federal polities. I ask whether the absence of a true European demos prevents the European Union from becoming a constitutional polity and whether there is a common understanding, in Europe, of the potential character or contours of a European demos.

It is not surprising that demos-related critiques have, so far, filled much of the European constitutionalization debate. In many theories of democratic development, whether in political science or in law, the existence of demos occupies a crucial place: without demos, many posit, no democratic form of governance is possible.Footnote 9 In various EU Member States, the ‘no demos’ objection appears widely shared among national juristsFootnote 10 and for some has not fundamentally changed over the last twenty years.

The actual characteristics of a common attachment or demos present a useful starting point for analysis, as certain preconditions can be easily grouped into three categories: language, history and ancestry.Footnote 11 Essentially, the concerns are that there exists (1) no single European citizenship, (2) no European spiritual homogeneity, (3) no common or shared European values, (4) no social or linguistic homogeneity at the European level and (5) no common European public space for political debate. The last need for a common European public sphere emerges from the ongoing demos debates in the judicial dialogues between periphery and centre courts, but I believe that it is also an overarching obstacle to further constitutionalization, one that touches on all other remaining obstacles.

The illustrative federal examples invoked are derived from an analysis of recent comparative and historical studies. For instance, scholars have noted certain similarities between the US Early Republic, Canada and the European Union.Footnote 12 The EU and the United States may even be described as similar compound democracies.Footnote 13 This, as supported by Alex Glencross, suggests that democracy is possible at the EU level and is shaping further integration.Footnote 14 And, as Robert Calhoon has posited, such experiences may point to continuation in the theory of compact.Footnote 15 The experiences of the United States, Switzerland, Canada and Argentina – taking into account the primary constitutional documents, historical accounts, early case decisions and reports, and related legal treatises and scholarly analysis from each jurisdiction – provide useful illustrative examples here.

My primary source of analysis, however, is the jurisprudence of the European Courts. I analyse cases that refer directly and indirectly to key obstacles to the construction of a European demos and select key cases from a wide range to focus on in detail to highlight the prevailing understanding. These include cases such as StauderFootnote 16 and Nold,Footnote 17 which are relevant to common European values; Martinez SalaFootnote 18 and Rottmann,Footnote 19 which concern European citizenship and homogeneity; and Grzelczyk,Footnote 20 ChenFootnote 21 and Ruiz Zambrano,Footnote 22 which concern European solidarity.Footnote 23 Debating these elements, I also select key national cases from EU Member States, again based on legal analysis and surveys of the scholarly literature, compilations of the decisions, case materials and reports. These range from the GFCC’s Maastricht decision,Footnote 24 which raises the question as to whether a European demos exists; the Lisbon Treaty judgmentFootnote 25 also of the GFCC; Landtová in the Czech Constitutional Court,Footnote 26 which concerns European homogeneity; Wallonia v. Flanders in the Belgian Constitutional Court;Footnote 27 the European Stability Mechanism [ESM] Treaty in the GFCC concerning European solidarity;Footnote 28 the Troika Bailout in the Portuguese Constitutional Court,Footnote 29 which concerns shared European values; the EPT Broadcaster in the Greek Council of State,Footnote 30 on European solidarity; and the Amsterdam Treaty in the Polish Constitutional Court,Footnote 31 also on shared European values. Many of the cases contain key tensions in the understanding of the concept of demos and its elements, and serve to highlight impoverished understandings of how demos in a federal entity is defined or can develop. In the dialogue of the courts, I also identify hesitations on the part of the CJEU to embrace federal thinking.

2.2 No Homogeneity of Citizenship?

2.2.1 Obstacles to Constitutionalization

Constitutional scholars and certain periphery courts have highlighted that most people do not yet identify with ‘Europe’ in the same way that they identify with their Member States or in the way other peoples identify with their national states.Footnote 32 This lack of self-identification as ‘citizens of Europe’ may be an important obstacle to developing a European demos. In particular, the concern is that EU citizenship is currently based on possessing the nationality of a Member State (Art. 9 TEU and Art. 20 TFEU).Footnote 33 The perception, fundamentally, is that Member States decide who is granted their nationality and by extension EU citizenship.Footnote 34 This calls into question the unifying value of EU citizenship.

2.2.2 Underlying Concepts of Constitutional Development

Any requirement that one homogenous citizenship should exist de lege and de facto, simply in order to allow a federal entity to acquire the necessary demos for constitutional development, reveals an impoverished understanding of the nature of federalism. There may not be a need for citizens to choose between one layer of citizenship and another – in contemporary constitutional scholarship, several overlapping levels of citizenship are not only recognized but actually celebrated as part of complex modern self-identification.Footnote 35 Several contemporary federal entities, as demonstrated in recent comparative studies, offer illustrative examples of the potential to overcome similar challenges during key periods of constitutional development.Footnote 36

As an initial example, the US Constitution did not initially subsume the identity of American citizens.Footnote 37 Americans were asked by politicians to feel ‘American’ but felt first and foremost New Yorkers, Virginians and Pennsylvanians.Footnote 38 National identity was secondary to home (constituent) state citizenship. Being part of a federal legal and political system did not extinguish the identity of a particular state or city. Rather, the constitutionalization of the United States gave the individual an added sense of political and legal identity that did not exclude original identities, except in times of direct conflict. Indeed, some might say that US debates regarding states’ rights inspired the Declaration of Independence, weakened the Articles of Confederation, influenced the US Constitution and, ultimately, sparked a civil war that threatened to permanently divide the constitutional polity.Footnote 39 Citizenship questions during this period were similarly fraught with controversy. For instance, after the Revolutionary War but before the ratification of the Constitution, all citizens were citizens only of their own state. This altered with Reconstruction, but there was no unified approach to citizenship, and large parts of entire populations were excluded from citizenship, particularly in states that allowed slavery. As such, ‘[s]tate citizenship, before the civil war, mattered a great deal’,Footnote 40 a reality that had harsh consequences, such as white Americans enjoying federal citizenship while black Americans did not. While the infamous Dred Scott ruling of the US Supreme Court signalled many problems of the times,Footnote 41 the dominance of federal citizenship is a post-Civil War phenomenon and was largely influenced by the Reconstruction Amendments, in particular the Fourteenth.Footnote 42 And while federal citizenship has not replaced state citizenship, with the Fourteenth Amendment, and while state citizenship remains relevant for voting rights, it has become less important. In essence, despite the laws that existed to somewhat superficially support the existence of an American demos and to enforce its tenets, this demos was not fully at the heart of a citizen’s identity. State citizenship highlights that in federal entities, a dominant federal citizenship is not required as a matter of principle since conceptions of citizenship can develop over time.

The constitutional development of Canada provides a further example. During the first twenty years after the creation of Canada, the citizenship identity of the people of Quebec remained quintessentially multi-faceted.Footnote 43 Further, indigenous peoples – the ‘First Nations’ – were not truly considered citizens of Canada until the mid-twentieth century. Indeed, most would argue that founders of the Canadian Dominion purposefully excluded the possibility of citizenship for indigenous Canadians.Footnote 44 Different classes of citizens thus still existed in the different provinces for a considerable time, with some even disputing the nationality of Inuit Canadians altogether. For constitutional legal thought this is, therefore, an important example of how different models of citizenship can develop over time and do not require a homogeneous notion of citizenship for either their functioning or their existence.

Similarly, the nature of citizenship in the old German Empire also serves as an illustration. All states of the German Empire of 1871, such as Prussia or Bavaria, had their own rules about citizenship. These rules included, to differing degrees, elements of ius soli and ius sanguinis, that is, citizenship on the basis of birth and ancestry, respectively. Common citizenship principles were adopted only several decades later in 1913 in the Reichs- und Staatsangehörigkeitsgesetz (RuStAG) of 22 July 1913, which ensured that the award of citizenship rights followed similar principles in all federated states.Footnote 45

These examples highlight that the underlying concepts for citizenship are very diverse and can have a federal and a federate dimension without calling into question the foundational character of citizenship.

2.2.3 Related EU Developments

This leads us to an interesting question: Is the mere political request to ‘feel European’ enough to create a demos? There is little doubt that politicians at all levels invoke European feelings when convenient,Footnote 46 although clearly there is a perceived lack of homogeneity of citizenry in the EU.

Yet this call to feel European is precisely what has occurred. An area where the EU has been fundamentally transformed over the last twenty years is in the area of citizenship. Development in this domain has not at all been confined to the political arena. Leading cases before the CJEU have fundamentally transformed the Union.

When the EU introduced the concept of EU citizenship in the Maastricht Treaty, Member States formulated the relevant provision very carefully in order to avoid creating the impression of a federal project.Footnote 47 The Treaty said (and still says) in Art. 17 TEC (now Art. 20 TFEU and Art. 9 TEU): ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ Although the constitutional foundation was laid at this stage for EU citizenship, few expected the elevation of this concept by the European Courts to the position of a foundational status.

The CJEU first pointed out in Grzelczyk that EU citizenship was ‘destined’ to provide the foundational statute for Member State nationals in other Member States.Footnote 48 The case concerned the simple question of whether a French national would be entitled to social benefits in Belgium when the benefits were reserved for nationals. The Court pointed out that Member States owed a certain level of solidarity to each other and that citizenship of the Union precluded discrimination on the basis of nationality alone. The Court did not establish that Member State citizenship was no longer relevant but rather attributed substantive rights on the basis of EU citizenship in particular, thus setting in motion a line of case law that served to elevate EU citizenship to a right equivalent to that of other federal entities.

Significant advances have now arguably resulted in fundamental changes to this understanding.Footnote 49 An important case for our discussion is the case of Mr Rottmann, who had a criminal conviction in Austria before acquiring German citizenship (and automatically losing his original Austrian citizenship). Problematic for him was that the German Citizenship Act expressly provides that undisclosed criminal convictions lead to an automatic loss of citizenship in Germany. The CJEU was asked by a German administrative court if EU citizenship had any impact on this question and the Court answered that the national court was required by EU law to assess whether Mr Rottmann would lose his genuine enjoyment of EU citizenship rights if he were to become stateless.Footnote 50 So Member State citizenship remains the main notion of citizenship in the Union, but decision-making as to whom citizenship is conferred upon is no longer an unfettered left with Member States. Rather, federal citizenship has a direct influence on federated citizenship. The Court has thus arguably moved from a mere interpretation of the relevant constitutional text towards a position that changes the nature of the interaction between the Union and the Member States. Their discretion, while significant, can be limited if rights granted to EU citizens are at stake.

This is an important case, demonstrating that even the starting point of this constitutional criticism is under serious challenge. Member States in the EU no longer have unlimited discretion as to when and how citizenship is awarded, particularly if there is a risk of interference with EU citizenship rights. The CJEU thus displays a carefully argued federal understanding of citizenship in this area. It also, to a certain extent, shows us how important is the understanding of the nature and dynamic of certain concepts and how the interpretation by the courts can have profound constitutional effects on the polity.

Several cases have reached the European Court from Member States who are themselves hesitant to award further citizenship benefits. In all these cases, reluctant or cautious Member State courts requested preliminary references to clarify the scope of EU citizenship. From the centre, these cases then received clear federal guidance. Consider Martinez Sala.Footnote 51 Mrs Martinez Sala, a Spanish national, had been working in Munich for the Spanish Consulate General and had been living legally in Germany for over ten years. However, she then became unemployed and did not fulfil the requirements of the free movement of workers. Nevertheless, the ECJ decided that she was entitled to a child-raising allowance because the only reason why the German authorities turned down her request was due to her nationality, which in turn constituted discrimination on the basis of nationality, prohibited by the EU Treaties. As seen earlier, the Court went one step further in the case of Grzelczyk. Mr Grzelczyk was a French national who studied in Belgium and applied for the minmax, a social benefit. His application was turned down on the basis of his nationality. The ECJ decided again that Mr Grzelczyk was entitled to non-discrimination and this time relied on the newly introduced EU citizenship chapter in the EU treaties, declaring that it was destined to become the fundamental status according to which the Member States will relate to nationals of other Member States.Footnote 52 Other cases include Bidar, where the Court decided that a French citizen was entitled to a study grant in the UK on the basis of his connectedness with the UK educational system.Footnote 53 These cases arguably display a strong federal understanding of two different but interconnected layers of citizenship in the Union. While Member States in all of these cases were hesitant to award benefits to the nationals of other EU Member States, the ECJ, through its interpretation of what is now Art. 20 TFEU, emphasized the rights that are conferred at the federal level and, in doing so, clarified our understanding of the reach of EU citizenship.

The most striking case after Rottmann is Ruiz Zambrano. Mr Zambrano, a Colombian citizen, had two children born in Belgium who, by virtue of their birth, acquired Belgian citizenship. The Belgian authorities wanted to expel his entire family on the basis that their asylum request had been turned down. The CJEU stepped in and this time followed a passionate plea by AG Sharpston to read EU citizenship rights expansively.Footnote 54 It decided that Mr Zambrano and his entire family had a right to stay and work in Belgium because otherwise the parents of EU nationals could not stay in the Union and earn a living, thus inhibiting the genuine enjoyment of citizenship rights. The Court, as in previous cases, decided this case in a way that demonstrates how different layers of citizenship can be interpreted and, in doing so, displayed a good understanding of the federal nature of the Union. Some critics have highlighted that the case caused a stir among EU Member States and Belgium eventually changed its nationality law,Footnote 55 arguably undermining the reach of EU citizenship by installing a more restrictive practice at Member State level. Belgium’s actions served to reinforce the elucidated federated rights of the Member States, demonstrating that, in the EU, different levels of citizenship can and do co-exist and that no higher level of homogeneity is required.

This extensive case law shows that there is a significant level of EU citizenship rights that reaches deep into the Member State legal orders. Full homogeneity is a misconception, and an appropriate complex and federated level of homogenous citizenship is already coming to exist at the European Union level.

2.2.4 Conclusion as to the Validity of This Objection

Is homogeneity truly lacking in the European context, then? What lessons can be learnt from the examples above in regard to the possibility of constitutionalizing Europe? The primary answer is that federal polities are rarely, if ever, built on a homogeneous and single citizenship of their people. This refutes the arguments of those who seek to deny the feasibility of a constitutionalized Europe due to the historical, cultural and identity-based differences present among the states that comprise the European Union. From overlapping conceptions of citizenship to quirks of self-identification within each state, constitutional scholars have conclusively demonstrated that the diverse citizenries were respected and melded into a constitutional system in each federal polity that both respects and incorporates them. Further, in an increasingly important series of European jurisprudence, EU citizenship has been interpreted as being of equal or more importance than Member State levels of self-identification.

2.3 No Religious Homogeneity?

2.3.1 Obstacle

A frequently cited obstacle to the development of European constitutional demos is a lack of a shared religion or even a sense of common religious values and traditions.Footnote 56 Religion is seen as a significant factor in the development of a common demos, and Europe appears to have very little in the way of a homogenous approach to religion,Footnote 57 even without taking Turkish accession interests into account. Critics argue that peaceful co-existence is possible only if a certain proximity of dominant religions exists in the population.Footnote 58

2.3.2 Underlying Concepts of Constitutional Development

Several contemporary federal entities provide insightful examples of similar challenges during key periods of their own constitutional development. In the United States, the mere fact that most Americans were Christians did not bind them together. Indeed, at key times and on key issues, Christianity per se did not unite American society.Footnote 59 Rather, varying religious beliefs – and attenuated social beliefs and mores – were frequently in tension with each other, even leading to incidents of physical violence. Thus, although a shared sense of God existed – and still exists – throughout the history of the United States, and this sense was often used to motivate people, there is little in the constitutional history of the United States to suggest that American national identity depended on one common homogenous religious or spiritual belief. Rather, the colonies that would become the United States of America were far from homogenous, and this is particularly true in terms of religion. The Pilgrims themselves were dissenters in England and left to found a new home as a result.Footnote 60 The Huguenots – French Protestants who eventually drew the ire of French authorities and were persecuted – fled to several colonies in what would become the United States.Footnote 61 Roman Catholics, long persecuted in England, were granted a place of safe-haven in the New World with the charter of Maryland under Lord Baltimore.Footnote 62 Similarly, William Penn was given a charter by the British government to found a colony for Quakers, another minority religious group that was not well received in mainstream cosmopolitan circles.Footnote 63 Communities of Amish were created within several of the colonies by the time of the Declaration of Independence.Footnote 64 This diversity in many ways also prevented the revolutionaries from an easy shedding of their State identities.

Dichotomies of suspicion existed not only between Catholic and Protestant communities but also within many factions of Protestantism, and reflected the prejudices and policies of the European states from which the immigrants that comprised the colonial settlements came. The goal of those who drafted and signed the Declaration of Independence was to create a moment of rupture – legal and societal – that would last far longer than their own lives.Footnote 65 Even where the colonies were chartered by the same British sovereign, they were not all chartered for the same purposes. For example, Maryland and Pennsylvania were chartered to give a home to minority religious groups – CatholicsFootnote 66 and Quakers,Footnote 67 respectively. And Georgia was created as a penal colony, although its founders also sought to make it a place of refuge for those of non-mainstream faiths, including Jews and Catholics.Footnote 68 The colonies generally were thought of as being a place of freedom and/or protection from the standard persecutions in Europe, and attracted a wide range of nationalities, ethnic groups and religious groups, which in turn shaped the independent character of each colony.Footnote 69

In essence, only very rudimentary requirements of homogeneity can be seen as fulfilled in spiritual terms for the US Early Republic. The ‘living together’ of individuals from different religious faiths can be a constituting part of creating a federal polity. Differing religious faiths and denominations will not form a relevant consideration for the homogeneity requirement when assessing a federal entity.

Similarly, taking Canada as an additional example, there were two dominant Christian denominations and other religions such as the Jewish faith, as the debate about reasonable accommodations in Quebec shows even today.Footnote 70 This dualism of Canada as a Dominion for both English-speaking Protestants and French-speaking Catholics was one of the founding features of the Union. The Constitution Act of 1867 provided important safeguards against influence from either side and allowed separate schooling and strong support for religiously based school systems in the provinces.Footnote 71 It is thus not surprising that public funding for Catholic schools in Ontario has withstood all constitutional challenges, even those based on the Charter of Fundamental Rights, which the Supreme Court declared inapplicable to Sec. 93.Footnote 72 The Canadian Supreme Court called this provision a ‘historical compromise crucial to Confederation’.Footnote 73 So, in other words, a foundational feature, protected by the courts, can be religious freedom, even when this goes so far as to safeguard certain religious rights in the educational system.

Similarly, in Switzerland, when France insisted on free movement of its citizens, including Jewish citizens, there was a constitutional crisis requiring an amendment of the Constitution in 1866, which introduced equal treatment for Jewish citizens but no right to participate in elections for non-residents.Footnote 74 So entrenched were the discussions about religious faiths in Switzerland that some feared that the federal union might break over the question.Footnote 75 Even to this day, Switzerland battles with questions of religious tolerance, as demonstrated by disputes surrounding the building of minarets.Footnote 76 From a theoretical perspective, the existence of several key religious communities might even be a strong reason for the creation of federal polity rather than a unitary state.Footnote 77

From these illustrative examples, it is unlikely that even a minimum level of religious homogeneity is required for the development of common demos in European constitutionalization.

2.3.3 Related EU Developments

Even assuming that a certain level of spiritual homogeneity is characteristic of demos, the experiences of the United States and Canada make it clear that the requirements cannot be seen as exceeding the current level of commonality between EU Member States. Among the EU Member States, there is a certain level of religious homogeneity in the sense that freedom of religion is guaranteed as a correlative of dignity of men, for example, in Art. 10 Charter of Fundamental Rights: ‘1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.’Footnote 78 In terms of demos, the United States is notable for its lack of a common religion, which is also a feature of the current EU configuration and membership. Indeed, some argue that the accession negotiations of Turkey – a state that, although secular since its modern-day founding, has a majority Muslim population and lengthy Islamic history as the seat of the Ottoman Empire – negate constitutionalization as a real possibility because they work against a shared sense of religious understanding.Footnote 79 Despite the current view of the United States as religiously homogenous, in that the majority of its citizens have been and are adherents to some form of Christian faith, a review of early US history demonstrates that this homogeneity is actually misleading in terms of the required level of unity. From its colonial inception onward, the United States has attracted all forms of Christian faiths. This is similar to the European distribution of a variety of Christian denominations within the jurisdictions of the European Union Member States.

Cases with a religious content are not exogenous to the European Courts and, indeed, the Strasbourg Court earned certain elements of its global reputation through various sweeping judgments in the area of religious matters that are not binding upon the CJEU.Footnote 80

The ECJ has mainly defended the right to religious tolerance.Footnote 81 One of the most hotly debated points of the Constitutional Convention process was the question of a reference to God in the preamble of the Treaty establishing a Constitution.Footnote 82 Even the Pope intervened briefly in the debate. In the end there was no reference to God included in either the Constitutional Treaty or the Lisbon Treaty.Footnote 83 Rather, the current preamble of the TEU states: ‘Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law …’, itself displaying a high degree of tolerance and freedom of religion.

One of the first cases to occupy the ECJ was the case of Van Duyn.Footnote 84 A Dutch national, Mrs van Duyn, wanted to do clerical work for the Church of Scientology, which was regarded by UK authorities as an organization against public order. The ECJ concluded that the freedom of workers to work in other Member States was a directly effective right and the UK authorities could deny her entry to the UK only where they relied on concrete personal behaviour of Mrs van Duyn that was giving rise to public order concerns. Mere membership of an organization was not sufficient to ban her from the UK.

Another case dealt with the hot topic of abortion, which is often discussed in religious terms. This was the case of Grogan.Footnote 85 Mr Grogan had campaigned in the Republic of Ireland as a member of a student union to inform students about the possibilities of abortion in England. He asked for a preliminary reference to be made in his case and the ECJ decided that, while it was not competent to rule on religious matters, the mere fact that a service was prohibited in one country and legal in another did not preclude the application of the fundamental freedom to provide services. However, Mr Grogan was not selling his information; thus, his ‘information service’ was not considered a commercial activity and as such did not benefit from the fundamental EU freedom in question. In many ways, again, we see that the ECJ displayed an understanding of religious homogeneity that does not leave the question solely to the Member States but, rather, strongly affirms religious freedom and tolerance.

2.3.4 Conclusion as to the Validity of This Obstacle

In this section, I have deconstructed the myth of the United States as a religiously homogeneous polity in which the Constitution could easily flourish. In fact, this example demonstrates that homogeneity can be deceptive and that a variety of religions had to come together to create, enforce and protect the Constitution and the Union it formed. Thus, arguments that constitutionalism in the European Union context is a different – and difficult – concept due to the lack of a common religious tradition are undermined by other illustrative experiences. They prove that it is entirely possible for a constitutional system to exist and succeed despite the presence of varying – and sometimes warring – religious traditions. Further, the ECJ has been instrumental in ensuring a tolerant constitutional approach. Its understanding is thus in line with other federal examples.

2.4 No Homogeneity of Values?

2.4.1 Obstacle

One of the obstacles raised for constitutionalization is the lack of common values.Footnote 86 Homogeneity of values is judged by some national constitutional scholars to be required for further constitutionalization. Similarly, the GFCC, for instance, has argued that it is not possible to have a European demos without homogeneity of values. There is no decision that would affirm the existence or possibility of a European demos.

2.4.2 Underlying Concepts of Constitutional Development

Common values are not generally a precondition for constitutionalization. Some argue that no such common values are necessary in a federal polity; others agree that the level of homogeneity of values is already present in Europe.Footnote 87 Indeed, in a number of examples of states with a written constitutional tradition, there seems to be an understanding that the constitutional document serves as a source for common values.Footnote 88 Indeed, as McDougal explained in the context of international law in the 1950s:

In this contemporary world, people are increasingly demanding common values that transcend the boundaries of nation-states; they are increasingly interdependent in fact, irrespective of nation-state boundaries, for controlling the conditions which affect the securing of their values; and they are becoming ever more realistic in their consciousness of such interdependences, and hence widening their identifications to include in their demands more and more of their fellow men.Footnote 89

Taking again the example of the US Early Republic, a closer analysis reveals a plethora of competing and often conflicting values, the most fundamental of which concerned the question of slavery.Footnote 90 While all revolutionaries were united in their revolutionary experience, there were very few values that were shared among the newly independent Americans. Some commentators have highlighted the commitment to democracy as a fundamental shared value, but, among the leading Federalists, there was growing scepticism of unfettered democratic governance, which was seen in some colonies to lead to new injustices.Footnote 91 This example shows that it is difficult to argue that a certain homogeneity of values would be necessary for a federal state.

This concern has been similarly raised but also addressed in the constitutional development of Switzerland and Canada. Their experiences can serve as additional examples from which we can draw out underlying constitutional concepts in this area.

In Switzerland, competing values were enshrined in its 1848 Constitution. Some favoured strong Cantons, while others favoured a Swiss nation state. Most fundamental rights were not formally included until the complete revision of the Swiss Constitution in 1999 and only as a codification of the existing case law on the matter. In this sense, it is difficult to argue that, given the competing values represented in the original Swiss Constitution, there was a high degree of homogeneity of values in this federal project. Rather, these values became more homogenous over time. One of the most prominent values of the Swiss Federation is the use of direct democracy for important decisions. This instrument, for instance, though used in some Cantons, did not develop until the late nineteenth century.Footnote 92

In Canada, shared values existed in the 1867 Constitution largely because of the colonial heritage of the four original provinces. Quebec only much later insisted on its own values and tried to even codify them, most recently in the Charte des valeurs québécoises.Footnote 93 This last example shows that even if a federal polity develops with a high degree of common values, this is no guarantee for the continuation of said values. Respect for a diverse range of values can thus be characteristic of a federation.

2.4.3 Related EU Developments

From the very beginning, EU Member States were significantly more homogeneous in terms of their values (and the values of the Community) than the US Early Republic and other such examples noted here.

The main component of homogeneity in a society today – the question of homogeneity of values – was overlooked by the GFCC. Interestingly, the GFCC does not enunciate in its list of homogeneity the question of political and social values. Rather, the Court seems to substitute the question of demos with some kind of pre-established perception of existing values within the polity. While the Court acknowledges the notion of change in its decision (i.e. the fact that EU integration can be successful in certain areas), it stops short of acknowledging that, in some areas, EU countries have already reached a significant level of homogeneity and/or that any homogeneity is not simply because of the ongoing integration project. This is seemingly in contradiction with the jurisprudence of the CJEU,Footnote 94 and also Art. 10 TEU, which declares the EU Parliament a direct source of representation of EU citizens and the Council an indirect source.Footnote 95 The EU has a strong general statement of values in its Art. 2 TEU: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’Footnote 96

These values are also relevant in its international affairs,Footnote 97 its neighbourhood policy,Footnote 98 as well as in the accession process.Footnote 99 All candidate countries must comply with the so-called Copenhagen criteria. They must fulfil a political, an economic and an EU law criterion. In political terms, the candidate country must enjoy stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. In economic terms, it must have a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union. Finally, in EU terms, it must accept the Union acquis, i.e. complying with all EU law in force and having the ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union.Footnote 100 It is these criteria, and not simply geographic proximity, that ensure that common values exist in the Union.Footnote 101 Any Member State no longer adhering to these values can be suspended according to Art. 7 TEU, which proscribes:

On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

In other words, there is a constitutional procedure in the Treaty to deal with Member States no longer adhering to identifiable common values.Footnote 102

While even the GFCC did not completely dismiss the possibility in its Lisbon decision, it suggested that such a demos remains a very distant potential. The CJEU has not answered this question directly; rather, it has simply ruled in a straightforward way that democracy and transparency are constitutional values of Europe.Footnote 103 Perceptions of democracy, administration, the role of the State, fundamental rights, social values in the economy and equality between men and women, just to name a few values, were legally considered shared by the Member States. As such, it is not surprising that the CJEU ruledFootnote 104 in Stauder, and later more explicitly in Nold and also in Internationale Handelsgesellschaft, that ‘the court is bound to draw inspiration from constitutional traditions common to the Member states’. In Nold, the CJEU had to answer the difficult question of whether the fundamental rights of the Member States could influence the implementation of EU law. The original 1958 Treaties of the European Economic Community did not contain any reference to public values beyond market values. The reason for this was simply that an attempt to create a European Political Community had failed in 1952 when the French National Assembly refused to ratify the treaty.Footnote 105 While this approach was successfully used in fundamental rights cases, it demonstrates a significant and high level of homogeneity with regard to fundamental values of society. Certainly, the emphasis on diversity as an important European value by the courts demonstrates a rather sophisticated understanding of the federal nature of the EU project.

The protection of human rights may be considered a common European value. While much of the attention of human rights protection is on the Council of Europe’s European Court of Human Rights (ECHR),Footnote 106 the CJEU has developed a sophisticated human and fundamental rights jurisprudence.Footnote 107 In the December 2014 ECHR accession opinion, this communality of values was explicitly recognized, leading to the draft accession agreement being found incompatible with EU law:

This legal structure is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.Footnote 108

After the Lisbon Treaty, this area is even more defined because of the entry into force of the Charter of Fundamental Rights, which has the same legal value as the Founding Treaties (Art. 5 TEU). The CJEU has recently engaged much more closely with the Charter text and decided in Volker/EifertFootnote 109 and Test AchatFootnote 110 that the Charter serves as a basis to engage in legislative review of EU norms. In Kadi,Footnote 111 for example, it decided that even UN Security Council Resolutions and the UN Charter cannot trump the priority of fundamental rights in the EU system. All these cases show that, at the level of values, Europe is much more homogeneous than many other polities. Again, emphasizing common values such as human rights can be a double-edged sword, and it perhaps puts into question how truly federal the CJEU’s understanding is here. Certainly, in a federal entity we would welcome differing interpretations, above a certain minimum standard of fundamental rights protection. Forcing Member States to perhaps accept lower levels of protection would thus go against the shared values of Europe that are already evolving through the case law. The Court often emphasized the autonomy of the EU legal order and thus did not see itself as bound by the level of protection granted by Member States, for example, in the case of Mannesmann Roehrenwerke.Footnote 112 In this case, the CJEU decided that a level of protection offered under the German Constitution, specifically regarding the right to privacy for businesses, did not amount to an EU right. This was made more explicit recently in Melloni:

It is true that Article 53 of the Charter confirms that, where an EU legal act calls for national implementing measures, national authorities and courts remain free to apply national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.Footnote 113

The emphasis was placed on EU rights even when the constitutional rights of the Member State contravene them.

2.4.4 Conclusion as to the Validity of This Obstacle

The analysis of common values plays an important part in our discussion of demos. A modern conception of demos, rather than relying on existing social structures, linguistic, religious or other homogeneity, has to see society as a commonwealth of shared fundamental values, even if just in the form of recognition that people can have several identities.Footnote 114 This obstacle has been advanced by Treaty change and through the CJEU jurisprudence, and no longer prevents the further constitutionalization of Europe.

2.5 No Social and Linguistic Homogeneity?

2.5.1 Constitutional Obstacle

Constitutional scholars, as well as certain Member State courts, such as the GFCC, insist that the development of a truly European demos requires a certain level of social, ethnic or linguistic homogeneity.Footnote 115 Concerns about ethnic homogeneity do not need to be taken further, given the last century’s progress in constitutional thinking, which recognizes the legitimacy of racial and ethnic diversity in any polity. However, there is a certain pragmatic obstacle for Europe that is not so easy to dismiss. Europe is currently attempting to develop demos with twenty-four official languages. To fully participate in the European demos, one would need to be an expert linguist. This, according to many scholars and courts, is unworkable in a purely social and practical sense.Footnote 116

2.5.2 Underlying Concepts of Constitutional Development

Several contemporary federal entities provide examples of similar challenges, though none to the extent of the current European formal requirements for twenty-four official languages.Footnote 117 Federal constitutional legal scholarship has argued that many languages and diverse social understandings can be accommodated within a single federal polity,Footnote 118 but surely there are reasonable limits. It is simply not possible that to participate competently in real-time European public discussions, one must be an expert linguist with command of two dozen languages.

One of the main reasons for Canadian federalism was the accommodation of two very different social and linguistic communities.Footnote 119 The communities of Lower and Upper Canada, that is, Quebec and Ontario, did not actually share the same languages or social identities. There were parts in the original Constitution Act that protected education, but, rather than specifying protection of the language, Art. 93 emphasized Protestant and Catholic schools. Art. 16, however, determined that ‘English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada’.

During the early development of Switzerland, different Cantonal communities did not share linguistic or social homogeneity.Footnote 120 The German-speaking Cantonal communities, in the late nineteenth century, were oriented towards conversations in German often from Zurich or Basel or even from Germany, whereas Francophone communities engaged in discussions through Geneva or often Paris. Nonetheless, the Constitution of 1848 was seen as instrumental to forging a new federal nation in Switzerland. However, over time, up to four official languages became genuinely accommodated within the Swiss constitutional order.Footnote 121 In Switzerland, as in Canada, the creation of a social and linguistic community evolved over time.

Post-apartheid South Africa is sometimes also put forward as a relevant example where twelve official languages are recognized, but this will not be addressed here, given the unique post-racism and social conditions of its constitutional development and the lack of adequate time to assess the success of its linguistic experiment.Footnote 122

2.5.3 Related EU Developments

After sixty years of European integration,Footnote 123 there may be a certain growing social and linguistic homogeneity among the peoples of Europe. However, besides two devastating world wars, there is rarely a common social experience that would provide an increased level of homogeneity. While a level of mutual understanding is wanted at the European level, the motto of the EU is ‘united in diversity’ (in varietate concordia)Footnote 124 and this was adopted also in opposition to e pluribus unumFootnote 125 (‘one out of many’), with the aim of highlighting that diversity in Europe is treasured and Member States aim to protect it.

Turning to examine the language regime in Europe, we see diversity as a value. Consciously, Member States of the EU did not opt for a common language regime. As Bruno de Witte commented:

Adopting a common currency among Member States of the European Union instead of using those countries’ national currencies has paved the way for economic benefits and reinforced political cohesion within the European Union. As such, the adoption of a common language should also be able to bring about more economic benefits, since this would not only facilitate the implementation of common policies, but would also enable eased operation within the common European market. Strengthening the sense of European identity would also improve the EU’s political and social cohesion. However, imposing a common currency is completely different from imposing a common language, as the latter is faced with several difficulties. European federalists never pursued this common language because of the need to preserve cultural distinctiveness and social cohesion among Member States.Footnote 126

The CJEU has played a crucial role in fostering a certain element of pragmatism in regard to the language regime of European institutions. While at the level of treaties and Union institutions, all twenty-four official languages may be used,Footnote 127 this becomes more complicated at the level of Union agencies. In the leading case of Christina Kik v. OHIM, where Mrs Kik was vigorously defending her right to use Dutch in applications to the European Trade Mark office, the Court of Justice defended a pragmatic approach to languages, finding that a balance could be struck between official languages and economic expense for translation services.Footnote 128 In other words, the CJEU embarked on a centralizing trend in language policy that was previously known only at the level of nation states. Interestingly, Member States tried to secure the current language regime by introducing Art. 3 TEU, which states that the Union ‘… shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced’. However, the trajectory in the case law towards a slightly more centralized language regime seems to continue in the post-Lisbon area. Recent attempts to make increased use of ‘working languages’, for example in the case of the EU patent, were challenged by Spain and Italy.Footnote 129 The CJEU, against the arguments advanced by those two Member States, could not find any violation when the Council, after years of deadlock, opted for enhanced cooperation (Art. 20 TEU) instead of trying to bring every Member State on board. The Court resoundingly rejected the notion that the exclusion of the last two countries, who were insisting that their languages be included in an EU patent, could constitute a misuse of powers or violation of Art. 20 TEU. As seen in the examples, a certain level of homogeneity is desirable in Europe. Although there is not yet a clear understanding or need to converge into one single language, and the Court stops far short of finding that English should become some sort of lingua franca, the Court itself has recognized the need for a practical smaller subset of working languages (German, French and English).Footnote 130

From the centre, other European cases of relevance to this debate include the case of Angonese on official language requirements and testing in the German-speaking province of Bolzano in Italy.Footnote 131 Mr Angonese had studied in Austria, but the private bank that was planning to employ him required an official bilingualism certificate from him, demonstrating his proficiency in German. The ECJ decided, on the basis that linguistic diversity is a protected right in Europe, that while the requirement to speak German in Bolzano was not an impediment to freedom of movement in itself, the documentation of such competency only via an official language test from the province was hindering workers in moving from one part of the Union to another. Several other judgments by the European Courts have confirmed that language requirements, such as speaking Irish to teach art in Ireland, are hindering freedom of movement. This line of case law is important because it prevents even private parties from erecting absolute barriers on the basis of language. As such, it is clear that, for the CJEU, linguistic homogeneity is not a requirement for Europe. Indeed, diversity must be respected and discrimination on this basis will not be tolerated. The Court does not see the use of many languages as an obstacle for Europe, but, rather, is willing to handle them in a flexible manner, balancing linguistic practicalities against other principles.Footnote 132

Despite this approach in the centre courts, certain Member State courts are insisting on a very high level of social or linguistic homogeneity. This is the case in many of the GFCC’s judgments. The GFCC does not provide an explanation of the requisite level of homogeneity beyond the pointing out that this homogeneity exists in the German Federal Republic and does not exist in the current European Union. The reasons are somewhat difficult to assess, but this conviction seems to be deeply rooted in German constitutional thought. While nineteenth-century scholars employed this argument to support German unification,Footnote 133 it has since become common to divide state sovereignty from other forms of governance.Footnote 134 From this perspective, the main reason that a certain level of social and political homogeneity is required seems to be an understanding that even the law cannot create the necessary constitutional consensus for a cohesive demos if a certain level of homogeneity is lacking.Footnote 135

In contrast, other periphery courts appear quite willing to defer to the European Court on such matters of linguistic politics, as was the case in the Belgian Constitutional Court in the dispute between Wallonia and Flanders.Footnote 136 The case concerned a new long-term illness insurance scheme that the authorities in Flanders had designed in a way so as to benefit only residents of Flanders or other EU citizens but not Wallonia people. The main criterion used for Belgian nationals of the scheme was the place of residence because, especially, schooling in Belgium is left to the linguistic communities; for instance, people living in Flanders will have their children schooled in Dutch. Francophone Belgians who wish their children to be educated in their mother tongue cannot enjoy the scheme while living in Wallonia where the schooling is in French. The whole insurance scheme was arguably designed to further linguistic objectives about which Wallonia complained in the Belgian Constitutional Court. While the Court did not find any reasons in the Belgian Constitution to strike down the measure, it decided to make a preliminary reference and the ECJ, despite a forcefully argued Opinion by AG Sharpston,Footnote 137 decided that this was a question of national law that the ECJ was not competent to answer. In other words, while the central Court does defend diversity and language rights at the European level, it continues to leave difficult constitutional decisions to the Member States. This shows that while social and linguistic homogeneity is not, even from the Member States’ perspective, a requirement for European integration, there is a certain degree of under-development of this element of constitutionalization in Europe.

2.5.4 Conclusion as to the Validity of This Obstacle

An area where existing diversity is most pronounced is in the EU’s very diverse language rules. There remains the question of whether a polity can – on a very practical level – have and respect twenty-four official languages without losing its demos quality. This is one of the questions that arises where illustrative examples from other federal entities provide little guidance for the European situation. Too many languages for open policy debates to actually occur in a European public space might well present one of the corollary obstacles that remain to be overcome in the EU. While English may well be unofficially used as a lingua franca, the informal recognition is simply not enough to avoid stifling the development of a common European public sphere. The unrealistic number of required languages, without a smaller subset of recognized and functional working languages, creates serious obstacles to open policy deliberation by the people in Europe.

2.6 No Common European Public Space for Political Debate?

2.6.1 Obstacle to European Constitutionalization

An important obstacle is the perceived lack of a common European public space for political debate. For successful constitutionalization, a common public space for political debate may be extremely crucial,Footnote 138 especially with regard to providing for political discourse beyond exchanges of the political elites, such as common debates about important public issues that affect the federation as a whole in the popular media and in common public forums designed for political dialogue.Footnote 139

2.6.2 Underlying Concepts of Constitutional Development

Such a demand for a common European space may be based on an overly simplistic view of constitutional development. Indeed, today’s ‘common space for public debate’ might best be described as simply a ‘fragmented set of local public political debates’ on common issues that affect the polity as a whole.Footnote 140 There is quantitative evidence of functioning public spheres at the Member State level and growing public awareness of other Member State perspectives. However, political scientists find only fragmentation and division at the EU level. In essence, there is interconnectedness of public spheres in the EU but little evidence of a trans-European common public space.Footnote 141 Based on qualitative examples, others such as Fossum and Koopmans disagree, highlighting seeds of an EU public sphere.Footnote 142 I agree that a public sphere may still develop over time, but the pace and scope of its evolution seems dependent on levels of politicalization, that is, increased political debates, in the European Union itself. Where, with the exception of a weak and under-noticed European Parliament, most decision-making is kept in intergovernmental executive or even administrative deliberations, it is not clear how this policy debate can ever flourish in a transparent and dynamic way.Footnote 143 The public sphere or communicative space does not simply occur. It can be constructed, and legal actors can make an important contribution to this process. The Regulation implementing the European Citizens’ Initiative demonstrates how legal changes can build greater trans-European cooperation and debate.Footnote 144 The EU treaties require 1 million signatures from across a significant number of Member States (Art. 11.4 TEU) for a successful initiative. The corresponding implementation regulation further clarifies that this requires signatures from at least one-quarter of the Member States (seven countries) and that, for each of these seven, a minimum number of citizens must be engaged. In the Regulation, there is a formula for this minimum: the number of the MEPs elected in each Member State, multiplied by 750 (Art. 7 Regulation on the Citizen’s Initiative), which translates to 3,750 signatures from Malta or 74,250 from Germany.Footnote 145

Several contemporary federal entities offer insightful examples of overcoming such gaps during key periods of their constitutional development.Footnote 146

For instance, one can consider the US experiences of public debates about democracy within each State of the US Early Republic – as opposed to democratic public debate at the Federal level. Early public debates about political issues during what was essentially a feudal post-colonial society in the relevant period were very different from our understanding of democratic public political debates today. Just as it was difficult to transmit information of the public sentiment from one State to another due to lack of media or modern communications in the late eighteenth century, it is actually difficult to interpret and transmit public political debates across neighbouring European Member States today, due to not so dissimilar barriers.Footnote 147

As an initial example, while it is easy to think of the United States essentially as a monolith in terms of identity and demos – especially at the time of its founding and the ratification of the Constitution – this is far from true and does a disservice to the founders’ work in creating an umbrella society that opened a trans-American space for further public political debates.Footnote 148 In particular, it is important to mention that there were initially no ‘national’ newspapers or magazines in the United States.Footnote 149 These remained local or state-wide publications and had very little continental reach.Footnote 150 It may be that the lack of EU-wide media, for instance, is not necessarily an obstacle to constitutionalization as such.Footnote 151

As a second example, constitutional scholars have demonstrated that Canada had a certain level of common public space in the demos of its founding, largely because the French language was either prohibited or severely under-represented in public policy.Footnote 152 Nonetheless, Canada is a very good example that social or political homogeneity is not necessary for the founding of a federal state. As noted by Henry Small, Canada was created as a composite dominion and more Provinces then joined the Union fairly early, bringing distinct cultural and social backgrounds that generated ample debate as to how such frontier provinces would fit into the new dominion of Canada.Footnote 153 This led, as explained by Peter Hogg, to an initially asymmetrical form of federalism where, even today, some parts of the Canadian Union are Territories with many of their affairs still controlled by the federal government. Initially, it was thought that the conquered French Canadian would not fit the Catholic English-speaking Canadian Provinces, which were governed by a common law system. It was only after careful negotiations that special privileges were granted to the predominantly Catholic Quebecers.Footnote 154

As a third example, scholars have also argued that in Switzerland, the Constitution of 1848 actually created a nation that did not really exist up to that point.Footnote 155 While there was a certain level of cultural and geographical homogeneity, there was close to no social or political homogeneity at the beginning of the new Constitutional federation. This, as explained by Franz Lehner, changed dramatically over the following decades through the new instruments of direct democracy, but, to this day, the Francophone and the German-speaking Cantons have very different voting patterns and prioritize very different issues.Footnote 156

However, considering recent studies, it must be noted that constitutional legal scholarship continues to highlight this lack of a common public political debate as a major obstacle to the constitutional development of these federal polities during their initial period. This distinction indicates a real challenge for EU constitutional development and is discussed further in Chapter 5.

2.6.3 Related EU Developments

European constitutional law scholars demand a common frame of historical reference and, according to these scholars, there is value in current attempts to prepare a European modern history book for use in schools.Footnote 157 Different dimensions of developing European demos over time, namely by fostering a transparent European public debate about federal political issues, have been explored in European Courts. As AG Cruz Villalon said in his Opinion in Case C‑280/11P Council v. Access Info Europe:Footnote 158

‘Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, and this term must apply to the EU, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate.

While it dismissed the request by Access Info Europe, the Court found: ‘Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.’Footnote 159 I would describe this as a very participatory, almost Habermasian vision of democracy in the EU. This, it appears, is different from the jurisprudence in certain constitutional courts at the periphery, which are keen to stress more traditional views of democracy.Footnote 160 AG Cruz Villalon later suggested, specifically in relation to Member States:

It is worth stating, once again, that Member States taking part in an EU legislative procedure as members of an institution are more like the common perception of a national legislature than they are like a sovereign body playing a role in relations governed by international law. The mind-set of discretion and even secrecy, which is justified in the context of relations between sovereign players, is out of place in the context of the European Union, which, in this respect, sees itself primarily and increasingly as a community based on the principles of the rule of law and democracy.Footnote 161

In other words, in the federal interplay between the Union and its Member States, Member States are not permitted to argue that they should be treated as foreign sovereigns, that they should not be subject to EU rules on transparency.

In the Lisbon Treaty case in 2010, the Grand Chamber of the Court decided that Germany had wrongly transposed the Data Protection Directive.Footnote 162 Germany argued that the principle of democracy precluded complete independence of a public body without state supervision. The Court, however, corrected this interpretation:

That principle does not preclude the existence of public authorities outside the classic hierarchical administration and more or less independent of the government. The existence and conditions of operation of such authorities are, in the Member States, regulated by the law or even, in certain States, by the Constitution and those authorities are required to comply with the law subject to the review of the competent courts. Such independent administrative authorities, as exist moreover in the German judicial system, often have regulatory functions or carry out tasks which must be free from political influence, whilst still being required to comply with the law subject to the review of the competent courts. That is precisely the case with regard to the tasks of the supervisory authorities relating to the protection of data.Footnote 163

In other words, the CJEU has a slightly different understanding of democracy than offered in the argument by Germany. In its view, it is sufficient that an institution is bound by law to be considered democratic as long as independent courts can review its decisions. The CJEU thus endorses an understanding of democracy that is not confined to the EU level or Member State level separately but rather imposes federal values on the federated level in the area of application of EU law.

As a further example, AG Bot’s Opinion in the case of Case C‑300/11 ZZ v. Secretary of State for the Home Department (2012)Footnote 164 states: ‘In a democratic society, it is imperative to allow the very people who are fighting the safeguards provided by the rule of law to benefit from those same safeguards in order to ensure the absolute primacy of democratic values, but this cannot result in a kind of suicide of democracy itself.’ In other words, the Advocate General, as a judge of the Court, sees the European people as a guarantor of democracy for Europe at the Member State level. Given the federal examples already mentioned, he endorses a federal understanding of democracy in this argument.

From the periphery of EU Member States, numerous European cases are of direct relevance to whether a common European public space is needed. These include Solange IFootnote 165 and the Maastricht case,Footnote 166 both in the GFCC. In Solange I, the GFCC refused to refrain from reviewing European Community acts using German fundamental rights because it believed that the Luxembourg Court was providing insufficient protection at the Community level. In Solange I, it held that ‘as long as’ the level of fundamental rights protection is not guaranteed at an equivalent level to the one in Germany, it will be for the GFCC to review Community acts. In its Lisbon Treaty case,Footnote 167 the Polish Constitutional Court approved Polish ratification of the Lisbon Treaty but warned that the Treaty must not undermine the identity of the Polish Constitution. In other words, it did not think the Union was capable of democratic discussions in a common political space. In the ESM cases,Footnote 168 the GFCC again reiterated its conviction that real democratic legitimacy can stem only from the national legal order and thus again empowered the German Bundestag to control precisely, for example, the transfer of funds to the ESM by prohibiting automatic increases or autonomous decisions detached from the German political process.Footnote 169 The recent case in OMT was an interesting German decision because, for the first time, the GFCC referred a question about the validity of unlimited state bond purchases by the European Central Bank to the CJEU.Footnote 170 With this decision, one of the last hold-outs among highest courts, the GFCC has entered into direct dialogue with Luxembourg. The impression of these judgments from the periphery is one of scepticism about the ability of the EU institution to deliver democratic decisions. This is relevant to the development of a European common space for political debate because the further this judicial interaction develops, given the high level of credibility that both Member State courts and the CJEU enjoy, the higher the level of acceptance that any compromise or inter-se agreement between these important centre-periphery actors will enjoy. In essence, even with increased jurisprudence on transparency and certain expressions of democracy, the crucial emergence of a common public sphere remains elusive.

2.6.4 Conclusion as to the Validity of This Obstacle

If one views the EU more as an administrative structure, as does Peter Lindseth, it is perhaps less pertinent to question the democratic legitimacy at the federal level.Footnote 171 But where democratic legitimacy develops over the long term in a federal policy, it becomes a major challenge for constitutionalization (see Chapter 2). Further, this concern is under-explored in the case law of the central CJEU. At the same time, more periphery courts view the requirement for a common legitimizing political debate as crucial for the development of a European demos and the need to develop a common European public space for political debate thereof as one of their main conceptual arguments for their scepticism about EU constitutionalization. This obstacle is further discussed in Chapter 5.

2.7 Key Factors for the Demos Dimension of European Constitutionalization

In this chapter, I have shown that both central and periphery court case law highlights key tensions in the understanding of the concept and elements of demos. Key Member State courts have not adequately considered even the possibility of the EU’s nature as a federating polity. Instead, they perpetuate an impoverished understanding of EU constitutionalization, one that is revealed by simple illustrations from other federal experiences. Further, the CJEU itself has yet to embrace a firm federal comprehension of the sub-elements of the constitutional obstacle of demos considered here.

The constituting elements of demos are discussed as questions of homogeneity, as mentioned by the GFCC in Maastricht and then explained further in Lisbon. This notion is contentious in itself; ‘How homogenous is homogeneity?’ would be a legitimate question. What makes all discussions about the existence/possibility of a European demos difficult is the amorphous nature of homogeneity in political, social and spiritual terms. The further thinking required is mainly legal in nature, rather than sociological or even psychological. It asks what minimum level of commonality might be required in order to attain one constitutional demos. It further begs the question whether the existence of different nations in one polity in any way undermines or inhibits each nation’s own democratic legitimacy. Does a federal state with more than one nation suffer irreparably from the lack of common demos? While some separatists might see the matter this way, a closer look returns to the reason for federalism itself, which lies in co-existence of different peoples in historical, social and perhaps also spiritual terms. These issues need not be discussed only in national terms, if a challenge – and raison d’être – of the EU remains a need to overcome national and especially nationalistic sentiments. ‘Real-world’ examples of homogeneity have been most useful to answer this question.

In this chapter, we conclude that, indeed, there is no ‘one size fits all’ interpretation and application of demos. Rather, I believe that a uniquely tailored federal demos is already shaping itself in Europe, though not without serious difficulties. Analysis based on this tailored approach to demos allows the genuine remaining obstacles to be identified. The key recurring theme of this chapter is that obstacles to the emerging European demos must be seen both in a European-specific context and in a more realistic light than the perfectionist vision currently employed in many European courts. This is necessary for the recent history and development of Europe to be taken seriously, and it is certainly not impossible. One of the fundamental approaches by the CJEU is that European integration is not static but rather developing.Footnote 172 This is consistent with approaches to interpretation in other jurisdictions, where founding documents are not viewed as frozen in time but are considered ‘living constitutions’.

Illustrative examples from other federal experiences demonstrate that certain elements of demos also develop over time through open and transparent exchanges of views in the common public sphere, rather than being founded upon a single pre-existing and homogenous national identity and demos. This is particularly true of the development, over time, of a common public sphere for transparent and engaged policy debate. Political scientists such as Thomas Risse have tracked the incidences of trans-European considerations during public debates over the past twenty years, using quantitative methods such as references, in the national media of EU Member States, to the issues and positions of other Member States.Footnote 173 His findings, which identify greatly increased inter-connectedness of national public spheres but no true common European debates as yet, reveal the limited progress that has been made and the extent of the remaining challenge.

In this chapter, this study analysed citizenship, highlighting different federal experiences such as state-based, rather than federal, citizenships. It demonstrated how key points that appear to raise obstacles to the existence of a European constitutionalization process are hardly fatal; instead, they appear as initial steps in its evolution. However, it also found that the lack of a common European public sphere remains an important obstacle as yet unaddressed by such evolution.Footnote 174 It seems absurd that in times of socio-political, environmental and economic crisis, public policy discussions rage only at a national level, even when decisions must quite clearly be taken at the EU or international level. Is the lack of a certain level of accountability necessary, providing an excuse behind which Member State governments will obscure rather than explain their positions? In the recent ESM decision of the GFCC,Footnote 175 European institutions were accused of being simply ‘smoke and mirrors’ masking relevant decisions taken out of sight of the public eye. Rather than seeing the lack/impossibility of a common demos as an insurmountable obstacle, it is crucial to further explore why the European public space remains still so elusive, to the point of void.

There seems to be an impoverished understanding of the EU in federal terms by the GFCC and, to a lesser extent, by the European Courts. By clarifying the nature and possibilities of federalism, I have shown that many supposed obstacles are not valid. However, and in conclusion, I have also highlighted that the lack of a European public space remains a significant obstacle to the further constitutionalization of Europe, transcending demos concerns to equally affect the civitas and also ius dimensions of possible advances. This is compounded by the requirement for twenty-four official languages in Europe, without a widespread pragmatic recognition of a more functional number of working languages in which trans-European public debates could take place.

Footnotes

1 Innerarity, Democracy in Europe, ch. 5; T. Eijsbouts, ‘People and Peoples in EU Law: To Debunk the No-Demos Myth’ in Papadopoulou, Pernice and Weiler (eds.), 113. Then there are also works that criticize both! See F. Wolkenstein, ‘Demoicracy, Transnational Partisanship and the EU’ (2018) 56 Journal of Common Market Studies 284; the EU needs to strengthen its demos, argues C. Wiesner, Inventing the EU as a Democratic Polity (Cham 2018), 297.

See comprehensively Jolly, ch. 3. For a more critical view see A. Moravcsik, ‘In Defense of the “Democratic Deficit”’, 603. There are, of course, still voices objecting to the characterization of the EU as constitutional, but even if one agrees with P. L. Lindseth’s approach in Power and Legitimacy, 1, that the EU is best characterized as administrative, it remains a valid question as to whether democratic legitimacy is even possible in the Union as a whole. He later discusses similar questions but with a very contemporary focus in ch. 5 on ‘Supranational Delegation and National Parliamentary Scrutiny since the 1970s’, 189. See the following for a more political-science-oriented approach: Curtin, Postnational Democracy; Jolly; Sbragia, 167; A. D. Smith, ‘National Identity’, 55.

2 Stevenson.

3 Maastricht Decision.

4 It references H. Heller, 421, 427ff, in Maastricht Decision.

5 Maastricht Decision, para. 100.

6 GFCC, Lisbon Decision, para. [251].

7 GFCC Lisbon Decision, para. 229.

8 Constitutional scholars such as Böckenförde and Grimm have argued in this vein. See also the GFCC in Lisbon Decision, at [249]: ‘European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient space for the political formation of the economic, cultural and social circumstances of life.’

9 See D. Held, Models of Democracy, 3rd ed. (Cambridge 2006).

10 Most recently the GFCC in Lisbon Decision, and the Czech Constitutional Court is openly defiant of the CJEU (against Case C-399/09, Marie Landtová v. Česká správa socialního zabezpečení [2011] ECR I-05573) in Pl. ÚS 5/12 of 31 January 2012, Slovak Pensions); see the very critical review by J. Komárek, ‘Czech Constitutional Court Playing with Matches: the Czech Constitutional Court Declares a Judgment of the Court of Justice of the EU Ultra Vires; Judgment of 31 January 2012, Pl. ÚS 5/12, Slovak Pensions XVII’ (2012) 8 European Constitutional Law Review 323.

12 D. Mann, ‘We, the People’ vs. ‘We, the Peoples’: The Debate over the Nature of the Union in the USA and Canada and Its Lessons for European Integration (Florence 2012), 16.

13 S. Fabbrini, Compound Democracies: Why the United States and Europe Are Becoming Similar (New York 2007).

14 A. Glencross, E Pluribus Europa? Assessing the Viability of the EU Compound Polity by Analogy with the Early US Republic (Florence 2007), http://cadmus.eui.eu/bitstream/handle/1814/7766/2007_05_Glencross.pdf?sequence=3; Glencross, What Makes the EU Viable?.

15 R. M. Calhoon, The Loyalists in Revolutionary America, 1760–1781 (New York 1973).

16 Case 29/69, Erich Stauder v. City of Ulm – Sozialamt [1969] ECR 00419.

17 Case 4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities [1974] ECR 00491.

18 Case C-85/96, María Martínez Sala v. Freistaat Bayern [1998] ECR I-02691.

19 Case C-135/08, Janko Rottmann v. Freistaat Bayern [2010] ECR I-01449.

20 Case C-184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-06193.

21 Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v. Secretary of State for the Home Department [2004] ECR I-09925.

22 Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm) [2011] ECR I-01177.

23 A. Biondi, E. Dagilytė and E. Küçük, Solidarity in EU Law: Legal Principle in the Making (Cheltenham/Northampton, MA 2018).

24 Maastricht Decision.

25 Lisbon Decision.

26 Czech Constitutional Court, Decision of 31 January 2012, Pl. ÚS 5/12, Slovak Pensions.

27 Case C-212/06, Government of Communauté française and Gouvernement wallon v. Gouvernement flamand [2008] ECR I-01683.

28 ESM Decision.

29 Portuguese Constitutional Tribunal, Judgment No 187/2013 of 6 April 2013, www.tribunalconstitucional.pt/tc/acordaos/20130187.html.

30 Council of State Committee decision COE No. 236/2013 of 12/06/2013; the final and full Council of State decision confirmed the constitutionality due to EU commitments: CoE 1901/2014 Constitutionality provision repealing ERT of 01.06.2014 with a very strong dissent; see www.taxheaven.gr/laws/circular/view/id/18919.

31 Polish Constitutional Tribunal, Judgment of 11 May 2005, case K 18/04 concerning the constitutionality of the ratification of the Accession Treaty.

32 See ‘the largest percentage of people declaring that they are European above other identities is observed in Luxembourg (20%), followed by Switzerland (7%)’ etc.; Ballas, Dorling and Hennig, 24.

33 ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ See differing views on the desirability of EU citizenship’s derivative nature in: L. Orgad and J. Lepoutre (eds.), Should EU Citizenship Be Disentangled from Member State Nationality? EUI Working Paper RSCAS 2019.

34 This has been expressly recognized and consistently reiterated by the Court: ‘Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality’: Case C-369/90, Micheletti [1992] EU:C:1992:295, para. 10.

35 C. Joppke, ‘Transformation of Citizenship: Status, Rights, Identity’ (2007) 11 Citizenship Studies 37.

36 P. H. Schuck, ‘Citizenship in Federal Systems’ (2000) 48 American Journal of Comparative Law 195; R. Hansen and P. Weil, Dual Nationality, Social Rights and Federal Citizenship in the US and Europe: The Reinvention of Citizenship (New York/Oxford 2002); F. Requejo, ‘Cultural Pluralism, Nationalism and Federalism: A Revision of Democratic Citizenship in Plurinational States’ (1999) 35 European Journal of Political Research 255; J. L. Cohen, ‘Changing Paradigms of Citizenship and the Exclusiveness of the Demos’ (1999) 14 International Sociology 245; S. Choudhry, ‘Citizenship and Federations: Some Preliminary Reflections’ in Nicolaidis and Howse.

37 R. M. Smith, Civic Ideals: Conflicting Visions of Citizenship in US History (New Haven, CT 1997) 87.

39 Footnote Ibid., 183–5; see, generally, Laursen, The EU and Federalism.

40 D. Lacorne, ‘European Citizenship: The Relevance of the American Model’ in Nicolaidis and Howse.

41 US Supreme Court, Dred Scott v. Sandford, 60 U.S. 393 [1857].

42 D. B. Heater, A Brief History of Citizenship (New York 2004) 72.

43 L. Oakes and J. Warren, Language, Citizenship, and Identity in Quebec (London 2007) 34.

44 S. Grammond, Identity Captured by Law: Membership in Canada’s Indigenous Peoples and Linguistic Minorities (Montreal, QC/Kingston, ON 2009), 71.

45 I. von Münch, Die deutsche Staatsangehörigkeit: Vergangenheit, Gegenwart, Zukunft (Berlin 2007), 14; H. Hagedorn, ‘Föderalismus und die deutsche Staatsangehörigkeit: die Einbürgerungspolitik der Bundesländer’ in L. Akgün and D. Thränhardt (eds.), Integrationspolitik in föderalistischen Systemen (Münster 2001).

46 See recently Francois Hollande describing the Franco-German Friendship as constituting the ‘Heart of Europe’; BBC News, ‘Germany and France Vow to Strengthen Ties’, 22 September 2012, www.bbc.co.uk/news/world-europe-19684532. Brexit has exacerbated the political manipulation of European feelings, with the ‘New Settlement for the United Kingdom within the European Union’ agreed in February 2016 containing both strong sentiments of EU federalism and equally strong sentiments of unfettered Member State sovereignty.

47 See Opinion of AG Sharpston in Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm) [2011] ECR I-01177.

48 Case C-184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-06193. This entitlement of EU nationals to also be citizens is strengthened by substantive rights and expectations that every national may have, as apparent in Advocate General Wathelet’s Opinion in Case C-115/15 Secretary of State for the Home Department v. NA [2016] ECR 00000.

49 Case C-109/01, Secretary of State for the Home Department v. Hacene Akrich [2003] ECR I-09607; Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-02119, noted by C. Barnard, ‘Case C-209/03, R (on the application of Danny Bidar) v London Borough of Ealing, Secretary of State for Education and Skills, Judgment of the Court (Grand Chamber) 15 March 2005, not yet reported’ (2005) 42 Common Market Law Review 1465; Case C-158/07, Jacqueline Förster v. Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-08507; Case C-135/08, Janko Rottmann v. Freistaat Bayern [2010] ECR I-01449; Case C-256/11, Murat Dereci and Others v. Bundesministerium für Inneres [2011] ECR I-11315: CJEU elaborates on Zambrano and ‘genuine enjoyment of substance of citizenship rights’; and, more recently, the shifting dynamics in Case C-67/14 Jobcenter Berlin Neukölln v. Alimanovic [2015] ECR 00000 and Case C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v. García-Nieto [2016] ECR 00000 where the CJEU has relied on a distinction between federal conferral of Union citizenship and Member State-controlled availability of benefits for the non-economically active. See S. Mantu and P. Minderhoud, ‘EU Citizenship and Social Solidarity’ (2017) 24 Maastricht Journal of European and Comparative Law 703, 710–20.

50 Case C-135/08, Janko Rottmann v. Freistaat Bayern [2010] ECR I-01449, at [58].

51 Case C-85/96, María Martínez Sala v. Freistaat Bayern [1998] ECR I-02691, noted by A. Albors-Llorens, ‘A Broader Construction of the EC Treaty Provisions on Citizenship?’ (1998) 57 Cambridge Law Journal 461.

52 Case C-184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR I-06193.

53 Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-02119, noted by Barnard, ‘Case C-209/03’, 1465. This trend has been complicated by the recent decision in Case C-333/13 Dano v. Jobcenter Leipzig [2014] ECR 00000, where the CJEU inadvertently blurred the lines by making sufficient resources a precondition to the right to reside legally in another Member State rather than a precondition to the right to claim benefits once residence as an EU national was established, allowing both broad and narrow readings of the federal rights to movement, as discussed in H. Verschueren, ‘Preventing “Benefit Tourism” in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52 Common Market Law Review 363.

54 Opinion of AG Sharpston in Case C‑34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm) [2011] ECR I-01177.

55 S. Adam and P. van Elsuwege, ‘Citizenship Rights and the Federal Balance between the European Union and Its Member States: Comment on Dereci’ (2012) 37(2) European Law Review 176. For relevant changes in Member State policy, see S. K. Schmidt, The European Court of Justice and the Policy Process: The Shadow of Case Law (Oxford 2018) 187.

56 A. Liedhegener and D. Gerstenhauer, ‘Auf dem Weg zu einem kooperativen Verhaeltnis Religion und die Vertiefung der Europaeischen Union’ in O. Leisse (ed.), Die Europaeische Union nach dem Vertrag von Lissabon (Wiesbaden 2010).

57 Grimm, Braucht Europa eine Verfassung? vol. 60 Siemens Stiftung, 42.

58 See political science literature, e.g. K. M. Bakke and E. Wibbels, ‘Diversity, Disparity, and Civil Conflict in Federal States’ (2006) 59 World Politics 1.

59 S. E. Ahlstrom and D. D. Hall, A Religious History of the American People (New Haven, CT 2004) 263.

60 E. Foner and J. A. Garraty (eds.), The Reader’s Companion to American History (New York 1991) 169.

61 J. McManners, The Oxford History of Christianity (New York 1993) 288.

62 Foner and Garraty, 161.

65 See Laursen, The EU and Federalism, 782–3 quoting John Adams’ comments to Abigail Adams: ‘The second day of July, 1776, will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival. It ought to be commemorated as the day of deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires and illuminations, from one end of this continent to the other, from this time forward, forevermore. You will think me transported with enthusiasm, but I am not. I am well aware of the toil, and blood, and treasure, that it will cost us to maintain this declaration, and support and defend these States. Yet, through all the gloom, I can see the rays of ravishing light and glory. I can see that the end is more than worth all the means, and that posterity will triumph in that day’s transaction, even although we should rue it, which I trust in God we shall not.’

66 Ahlstrom and Hall, 166.

70 M. Potvin, ‘Social and Media Discourse in the Reasonable Accommodations Debate’ (2010) Immigration and Diversity 78.

71 Art. 93 provides:

In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union; (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec; (3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education; (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

72 In Adlerv. Ontario [1996] 3 SCR 609, the majority ruled:

Section 93 of the Constitution Act, 1867 is the product of a historicalcompromise crucial to Confederation and forms a comprehensive code with respect to denominational school rights which cannot be enlarged through the operation of s. 2 (a) of the Charter. It does not represent a guarantee of fundamental freedoms. The appellants, given that they cannot bring themselves within the terms of s. 93’s guarantees, have no claim to public funding for their schools. To decide otherwise by accepting the appellants’ claim that s. 2 (a) requires public funding of their dissentient religion-based schools would be to hold one section of the Constitution violative of another.

74 H. C. Peyer, Verfassungsgeschichte der alten Schweiz (Zurich 1978).

75 J. Steinberg, Why Switzerland?, 2nd ed. (Cambridge 1996) 206.

76 J.-F. Mayer, ‘A Country without Minarets: Analysis of the Background and Meaning of the Swiss Vote of 29 November 2009’ (2011) 41(1) Religion 11; D. Danaci, ‘The Minaret Ban in Switzerland: An Exception to the Rule?’ in W. Marxer (ed.), Direct Democracy and Minorities (New York/Heidelberg 2012); D. Miller, ‘Majorities and Minarets: Religious Freedom and Public Space’ (2016) 46 British Journal of Political Science 437.

See Conseil fédéral suisse, ‘Message relatif à l’initiative populaire «Oui à l’interdiction de se dissimuler le visage» et au contre-projet indirect (loi fédérale sur la dissimulation du visage)’ (Federal Gazette, 15 March 2019), www.admin.ch/opc/fr/federal-gazette/2019/2895.pdf. For a more critical piece on the minaret/burqa ban debates, see V. Eskandari and E. Banfi, ‘Institutionalising Islamophobia in Switzerland: The Burqa and Minaret Bans’ (2017) 4 Islamophobia Studies Journal 53.

77 A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London 1915).

78 Art. 10, Charter of Fundamental Rights of the European Union (OJ 2000 C 364 p.1).

79 B. Kuniholm, ‘Turkey’s Accession to the European Union: Differences in European and US Attitudes, and Challenges for Turkey’ (2001) 2 Turkish Studies 25.

80 S. Mancini, ‘Taking Secularism (Not Too) Seriously: The Italian “Crucifix Case”’ (2006) 1 Religion and Human Rights 179.

81 B. M. Awe, ‘Religion in the EU: Using Modified Public Reason to Define European Human Rights’ (2009) 10 German Law Journal 1439.

82 See ‘Proposal of the Polish members of the European Convention – Mr. Edmund Wittbrodt, Mrs. Danuta Huebner, Mr. Jozef Oleksy, Mrs. Genowefa Grabowska, Mr. Janusz Trzciński, Mrs. Marta Fogler’ – who wanted to include a reference to the Judaeo-Christian values, http://european-convention.europa.eu/docs/Treaty/pdf/1000/Pre%20Wittbrodt-a%20EN.pdf.

83 H. Goerlich, W. Huber and K. Lehmann, Verfassung ohne Gottesbezug?: Zu einer aktuellen europäischen Kontroverse (Leipzig 2004); A. J. Menéndez, ‘A Christian or a Laic Europe? Christian Values and European Identity’ (2005) 18 Ratio Juris 179.

84 Case 41/74, Yvonne van Duyn v. Home Office [1974] ECR 01337.

85 Case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan and others [1991] ECR I-04685.

86 J. Lacroix, ‘Does Europe Need Common Values? Habermas vs Habermas’ (2009) 8 European Journal of Political Theory 141.

87 See G. F. Mancini, Democracy and Constitutionalism in the EU (Oxford 2000) 31; D. N. Chryssochoou, Democracy in the European Union (London 1998); E. O. Eriksen and J. E. Fossum (eds.), Democracy in the European Union: Integration through Deliberation? (London 2000); Fabbrini (ed.), Democracy and Federalism; C. Lord, Democracy in the European Union (Sheffield 1998); V. A. Schmidt, Democracy in Europe: The EU and National Polities (Oxford 2006); F. W. Scharpf, ‘Democratic Legitimacy under Conditions of Regulatory Competition: Why Europe Differs from the United States’ in Nicolaidis and Howse.

88 P. H. Russell, ‘The Political Purposes of the Canadian Charter of Rights and Freedoms’ (1983) 61 Canadian Bar Review 30.

89 M. S. McDougal, ‘The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument of Democratic World Order’ (1952) 1 American Journal of Comparative Law 24.

90 See Wood, Empire of Liberty, ch. 14, 531.

92 Kobach, 12.

93 For profound and historic criticism, see J. Maclure, ‘Le projet d’une charte de la laïcité: les raisons d’un sain scepticisme’ (2013) 34 La Revue Tocqueville 155.

94 Case 294/83, Parti écologiste ‘Les Verts’ v. European Parliament [1986] ECR 01339.

95 ‘Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens’; Art. 10.2, TEU.

96 See the commentary on Art. 2 by M. Klamert and D. Kochenov, ‘Article 2 TEU’ in M. Kellerbauer, M. Klamert and J. Tomkin (eds.), The Treaties and the Charter of Fundamental Rights: A Commentary (Oxford 2019) 22.

97 I. Manners, ‘The Normative Ethics of the European Union’ (2008) 84 International Affairs 45.

98 P. Leino and R. Petrov, ‘Between “Common Values” and Competing Universals: The Promotion of the EU’s Common Values through the European Neighbourhood Policy’ (2009) 15 European Law Journal 654. See Part VI, The European Neighbourhood Policy and the Promotion of EU Norms and Values’ in T. Schumacher, A. Marchetti, and T. Demmelhuber (eds.), The Routledge Handbook on the European Neighborhood Policy (Abingdon/New York 2017).

99 H. Vollard, European Disintegration (London 2018), 99.

100 See analysis by J.-W. Müller, ‘Defending Democracy within the EU’ (2013) 24 Journal of Democracy 138.

101 Art. 49, TEU:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

102 For various takes on this mechanism, see C. Closa and D. Kochenov (eds.), Reinforcing the Rule of Law Oversight in the European Union (Cambridge 2016). On the EU action taken in this area to date and additional mechanisms that have been proposed or launched to monitor and enforce, see L. Pech and K. L. Scheppele, ‘EU Values Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3.

103 See, most recently, Opinion of AG Cruz Villalón in Case C‑280/11 P, Council of the European Union v. Access Info Europe, Judgment of the Court (First Chamber) of 17 October 2013, not yet reported.

104 Case 29/69, Erich Stauder v. City of Ulm – Sozialamt [1969] ECR 00419 and Case 4/73, J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European Communities [1974] ECR 00491.

105 Craig and de Búrca, The Evolution of EU Law, 15.

106 On the interaction between the Courts, see Douglas-Scott, 629.

107 See A. von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’ (2000) 37 Common Market Law Review 1307; L. Betten and N. Grief, EU Law and Human Rights (Harlow 1998).

108 Opinion 2/2013, (nyr) para. 167.

109 Joined Cases C-92/09 and C-93/09, Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v. Land Hessen [2010] ECR I-11063.

110 Case C-236/09, Association Belge des Consommateurs Test-Achats ASBL and Others v. Conseil des ministres [2011] ECR I-00773.

111 Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities [2008] ECR I-06351.

112 T-112/98, Mannesmannröhren-Werke v. Commission, 20 February 2001, [2001] ECR II-729.

113 Case C‑399/11, Melloni, 26 February 2013, EU:C:2013:107, para 60.

114 New anthropological research challenges the understanding that societies need shared values at all; see W. Schiffauer, Parallelgesellschaften: Wie viel Wertekonsens braucht unsere Gesellschaft?: Für eine kluge Politik der Differenz (Bielefeld 2008), who argues for a recognition of different values and multiple identities.

115 See the work Heller, 421, 427pp referenced by Maastricht Decision.

116 J. Lacey, ‘Must Europe Be Swiss? On the Idea of a Voting Space and the Possibility of a Multilingual Demos’ 44 British Journal of Political Science 61; P. van Parijs, Linguistic Justice for Europe and for the World (Oxford 2011); T. de Mauro, In Europa son già 103. Troppe lingue per una democrazia? (Laterza 2014). For a criticism of the idea that there should be a single EU lingua franca, see M. Gazzola and R. W. Ronza, ‘The Politics and Policy of Multilingualism in the European Union’ (2018) 1 Brown Journal of World Affairs 55.

117 R. L. Creech, Law and Language in the European Union: The Paradox of a Babel ‘United in Diversity’ (Groningen 2007); R. Phillipson, ‘Lingua Franca or Lingua Frankensteinia? English in European Integration and Globalisation’ (2008) 27 World Englishes 250.

118 Bakke and Wibbels, 1.

119 H. B. Small, Chronicles of Canada, or a Concise History of the Leading Events in the Old Provinces of the New Dominion (Ottawa 1868).

120 C. H. Church and H. R. Conrad, A Concise History of Switzerland (Cambridge 2013) 165; W. Oechsli, P. Eden and P. Cedar, History of Switzerland, 1499–1914 (Cambridge 1922).

121 E. His, Schweizer Verfassungsgeschichte: Der Bundesstaat von 1848 bis 1914. Register zu Band I–III (Zurich 1938).

122 K. Govender, ‘Federalism and Legal Unification in South Africa’ in Halberstam and Reimann (eds.), Federalism and Legal Unification, 391.

123 On EU integration, see Wiener, Börzel and Risse.

124 D:\Mr.Mohan\CUP-Jobs\03-May-GEHRING\3

125 Phrase incorporated in the official seal of the United States of America.

126 B. de Witte, ‘Language Law of the European Union: Protecting or Eroding Linguistic Diversity?’ in R. Craufurd-Smith (ed.), Culture and European Union Law (Oxford 2004) 205.

127 Regulation No. 1/1958 determining the languages to be used by the European Economic Community (OJ L 17, 6.10.1958, p.385).

128 Case C-361/01 P, Christina Kik v. Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) [2003] ECR I-08283; see comment by N. Nic Shuibhne, ‘Case C-361/01 P, Kik v. Office for Harmonization in the Internal Market (Trade Marks and Designs), (Kik IV)’ (2004) 41(4) Common Market Law Review 1093.

129 Joined Cases C-274/11 and C-295/11, Kingdom of Spain and Italian Republic v. Council of the European Union, Judgment of the Court (Grand Chamber) of 16 April 2013, not yet reported.

130 For a critique of the dominance of these languages in the EU, see Q. Jin, ‘Linguistic Hegemony in the EU’ (2017) Proceedings of 3rd International Symposium on Social Science.

131 Case C-281/98, Roman Angonese v. Cassa di Risparmio di Bolzano SpA [2000] ECR I-04139.

132 On categorizing the linguistic approaches of the CJEU and national courts, see S. Šarčević, Language and Culture in EU Law: Multidisciplinary Perspectives (London/New York 2016) 53.

133 G. Jellinek, Die Lehre von den Staatenverbindungen (Vienna 1882) 137, where he discusses ‘Staatenstaaten’, i.e. federal states, and highlights that at his time the literature on this topic was very sparse and mainly focused on the German Empire, citing Schulze, who, according to Jellinek, was wrong in assuming that a federal state uniquely existed in Germany at the time.

134 I. von Münch and P. Kunig, Kommentar zum Grundgesetz, 6th ed. (Munich 2012), Art. 146, which describes the process of replacing the German Constitution with a completely new constitutional document. This right, however, is reserved for the ‘German nation’ (‘Deutsche Volk’).

136 Case No 51/2006, 19 April 2006, Belgian Constitutional Court www.const-court.be/public/f/2006/2006-051f.pdf.

137 Opinion of AG Sharpston in Case C-212/06, Government of Communauté française and Gouvernement wallon v. Gouvernement flamand [2008] ECR I-01683.

138 On the importance of constitutionalization and the public sphere, see P. Blokker, ‘Constitutional Mobilization and Contestation in the Transnational Sphere’ (2018) 45 Journal of Law and Society S52.

139 Risse, European Public Spheres, 5.

140 U. Liebert, ‘Civil Society, Public Sphere and Democracy in the EU’ in E. O. Eriksen and J. E. Fossum (eds.), Rethinking Democracy and the European Union (London 2013).

141 Sarikakis and Kolkytha; Risse, European Public Spheres, with further citations to his earlier works.

142 J. E. Fossum and P. Schlesinger, The European Union and the Public Sphere: A Communicative Space in the Making? (Abingdon/New York 2007); R. Koopmans and P. Statham, The Making of a European Public Sphere: Media Discourse and Political Contention (New York 2010).

143 Risse, European Public Spheres, 143.

144 J. Greenwood, ‘The European Citizens’ Initiative: Bringing the EU Closer to Its Citizens?’ (2018) Comparative European Politics 940.

145 Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the Citizens’ Initiative, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:065:0001:0022:EN:PDF.

146 Fossum and Schlesinger.

147 A. Koschnik, ‘The Democratic Societies of Philadelphia and the Limits of the American Public Sphere, circa 1793–1795’ (2001) 58 The William and Mary Quarterly 615.

148 D. J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (Stanford, CA 2004).

149 Foner and Garraty, 727.

150 Interestingly, there is growing historical research suggesting that the American Revolution was made possible only by the widespread availability of mail services and newspapers; see for references the E Pluribus Unum Project directed by Dr John McClymer, Professor of History, Assumption College.

151 M. Machill, M. Beiler and C. Fischer, ‘Europe-Topics in Europe’s Media: The Debate about the European Public Sphere: A Meta-Analysis of Media Content Analyses’ (2006) 21 European Journal of Communication 57.

152 Oakes and Warren, 34.

153 Small, Chronicles of Canada.

154 Hogg, 42.

155 Church and Conrad, 63.

156 F. Lehner, ‘Consociational Democracy in Switzerland: A Political-Economic Explanation and Some Empirical Evidence’ (1984) 12 European Journal of Political Research 25.

157 D. Henri, G. Le Quintrec, P. Geiss, R. Prass and E. Mursa, Histoire/Geschichte (Stuttgart/Leipzig 2008) is the first of these modern history books to have been co-written by French and German historians. The EU Commission is said to be preparing a pan-European history book.

158 Case C-280/11 P, Council of the European Union v. Access Info Europe, Judgment of the Court (First Chamber) of 17 October 2013, not yet reported, para. 63.

159 Footnote Ibid., para. 33, citing Sweden and Turco v. Council, para. 46.

160 See GFCC, Lisbon Decision, para. [215]:

However, all systems of representative democracy have this in common: a will of the majority that has come about freely and taking due account of equality is formed, either in the constituency or in the assembly which has come into being proportionally, by the act of voting. The decision on political direction which is taken by the majority of voters is to be reflected in Parliament and in the government; the losing part remains visible as a political alternative and active in the sphere of free opinion-forming as well as in formal decision-making procedures, as an opposition that will, in subsequent elections, have an opportunity to become the majority.

162 Case C-518/07, European Commission v. Federal Republic of Germany (Personal data processing) [2010] ECR I-01885.

164 Opinion of AG Bot in Case C-300/11, ZZ v. Secretary of State for the Home Department, EU:C:2012:563, para. 43.

165 GFCC, Solange I, BVerf 37 of 29 May 1974.

166 Maastricht Decision.

167 Polish Constitutional Tribunal, Lisbon Treaty, Case K 32/09, http://trybunal.gov.pl/fileadmin/content/omowienia/K_32_09_EN.pdf.

168 ESM Decision. Applications for the issue of a temporary injunction, www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2012/09/rs20120912_2bvr139012en.html.

169 GFCC, Lisbon Decision; GFCC, ESM Treaty, Footnote ibid.

170 GFCC, OMT, 2 BvR 2728/13 of 14 January 2014, www.bverfg.de/entscheidungen/rs20140114_2bvr272813en.html. A. Pliakos and G. Anagnostaras, ‘Saving Face? The German Federal Constitutional Court Decides Gauweiler’ (2017) 18 German Law Journal 213. The latest version of this ongoing dialogue was the decision in Public Sector Purchase Programme (PSPP) of 5 May 2020, in which the GFCC ruled that the CJEU decision in Weiss (C-493/17, Weiss and Others, EU:C:2018:1000) was ultra vires opening a new chapter of constitutional dialogue with significant crisis potential. Unfortunately this decision was decided after the main text of this book had been edited.

171 Lindseth, Power and Legitimacy.

172 See Advocate General Sharpston in Case C-34/09, Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), paras. 171–3; see, for a comparison between EU and other constitutionalizing polities, A. Stone Sweet, ‘The Structure of Constitutional Pluralism: Review of Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Post-National Law’ (2013) 11 International Journal of Constitutional Law 491, 494.

173 See, for example, Risse, European Public Spheres.

174 Particularly the Canadian experience is instructive here. Quebecers are considered a ‘nation’ within the Canadian federation: J. Létourneau, ‘“Silent Revolution”: The Transformation of the Québécois Identity’ (2017) 32 London Journal of Canadian Studies 98, 101; J. Maclure, Quebec Identity: The Challenge of Pluralism (Montreal/Kingston, Ontario 2013) 1011.

175 ESM Decision. Applications for the issue of a temporary injunction, www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2012/09/rs20120912_2bvr139012en.html.

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