European and National Constitutional Law

Full course description

This Master Course is a compulsory course in the public law track of the European Law School (ELS) Master Programme and an elective for students in the other tracks of ELS as well as those participating in the Master Programs Globalization and Law, International Laws, and Nederlands Recht (Dutch Law). The course focuses on the relationship between EU law and domestic constitutional law in a comparative setting.

We will seek to discuss and analyze questions such as: how does multi-layered decision-making take place? How has national constitutional law evolved under the influence of EU law? How may we perceive ‘European’ democracy in the light of national states and how should the concept of dual legitimacy be assessed? How have national courts been included in European integration and has this impacted upon national constitutional courts? How does the European Human Rights landscape look like? And how does the EU intervene in Member States political-institutional scenario for deficiencies in the rule of law?

The course has therefore a vertical approach (EU – Member States) as well as a horizontal perspective, looking into the impacts and practices of a few (selected) national constitutional systems. The course focuses on the present state of affairs (e.g. what are the present powers of national parliaments vis-à-vis EU law making) but also allows plenty of room to relate to recent developments and state of discussions about the optimal or desired balance between the EU and its Member States. Furthermore, we will deal with recent events and steps in the integration process or national developments, such as the rule of law challenges posed by Hungary and Poland to the EU, the reaction of the German Constitutional Court to the European Central Bank financial measures and the debate regarding the Next Generation European Union (NGEU) Fund.

The aim of this course is to study national constitutional law in its relations to EU law, with their various interactions and multi-layered features. This perspective is necessary for instance to understand where and when to lobby, or to be aware how consultations and deliberations on rule- and policy-making take place. When studying substantive areas of the law one has to be increasingly aware that multi-layered rules and rule makers exist and cooperate. Thus, decision-making does not take place on one level only (be it the EU level or the Member State level) but also in collaboration between the different levels. The goal of this course is to show and analyze the present functioning of constitutional law in member states as impacted by EU law. It is therefore relevant to know who is involved in the decision-making process, the execution of the decisions and the implementations thereof.

European lawyers cannot operate without insight in the interaction of EU competences and national authorities’ powers in many domains. This goes for lawyers, judges, civil servants, lobbyists and consultants and others. All lawyers have to a lesser or larger extent to be able to navigate between different sources, actors, decision makers, lawmakers and executives and courts.

In this seven weeks course we can go only so far in providing tools and insight in different domains of multi-layered government; it is not the purpose to investigate in detail areas such as the banking union, or competition law, or other domains of the law, but we will trace the phenomenon of multi-level government and the various ways of interaction between the EU and states and their effects on national constitutional law and the exercise of powers by national branches of government. This year we will focus on seven areas whereas it is evident the potential for cooperation (or conflict) between the EU and the Member States. We will particularly investigate the magnitude of these convergences (or clashes) and their constituent elements in the area of (1) the development of a supranational normative power and the establishment of autonomous institutional order; (2) the growing of an fully-fledged EU economic union; (3) the monetary governance as example of integration of States through the law; (4) the relationship between the EU and Members States jurisdictions; (5) the rule of law crises and the threat to EU values; (6) the human rights status of health in Europe and the trilateral relation States-EU-CoE; (7) the current relationship between EU and Member States in a multi-level legal order. These issues will also lead us into a discussion of the future of the EU: its competences, its legitimacy, its democratic foundations and developments pertinent to further integration and towards a political union.

It is important to note that although this course is a legal course, there is an evident relationship with politics and with societal and political discussions as to legitimacy, accountability, competences, sovereignty, division of powers and related concepts. These are legal concepts certainly, but with a prominent political substance and they relate to politics as well. Power struggles and division of powers are legally relevant but also politically, and we need therefore to have an open eye for the political context, within the EU and within the various member states. That is the political reality, as mirrored by Eurosceptic parties or declining trust in the EU project. It is necessary for lawyers to understand the EU as a legal constitutional project as well as a project which impacts on national sovereignty, national parliaments’ powers, national political parties and national constitutional relations.

This course builds upon the other preceding courses in the master European Law School, such as Advanced European Law and Fundamental Rights, and it aims to offer different perspectives in the interaction between the different levels of the multi-level system.  Furthermore, we do expect all students to possess knowledge of constitutional legal concepts and of their own constitutional system and the basis functioning of the EU law. In case you have started the ELS program in the beginning of 2022 (and this course is actually one of your first courses in the master ELS program, we do recommend acquainting yourself of the necessary knowledge of (institutional) EU law. We also recommend you strongly to follow the relevant news about EU developments and relevant discussions and papers and documents. The sites of the Commission, Council, and Parliament contain extensive information on all relevant issues and topics. And possibly the same applies for the sites of parliaments and governments in your home country.