La Constitution économique parmi les Constitutions européennes

Kaarlo Tuori

Revue internationale de droit économique, 2011, vol. t.XXV, issue 4, 559-599

Abstract: In the European context, the place of the revolutionary notions of constitutive power, demos and constitutional moment is occupied by the evolutionary concept of constitutionalisation. Economic constitution is merely one aspect in multi-dimensional European constitution (alisation). My tentative proposal is to distinguish between the following dimensions of constitution : economic constitution ; juridical constitution ; political constitution ; social constitution ; and security constitution. In this classification, economic constitution is about the relation of law to the fundamentals of the economic system ; juridical constitution concerns the fundamental features of the legal system and establishes a reflexive relation of the law with itself ; and through political constitution, the law regulates the political system or ? to use different political vocabulary ? the polity, and contributes to both its empowerment and containment. The ultimate object of the social constitution consists of the members of society, their social life-world, while security constitution addresses society?s internal and external security risks. According to my (hypo) thesis, European constitutionalisation is susceptible to a periodisation where each stage receives its particular colouring from a particular constitution. Reflecting the temporal and functional primacy of economic integration, the first wave proceeded under the auspices of economic constitution ; in the second phase, the emphasis shifted to juridical constitution ; during the third wave, the focus was transferred to political constitution ; and finally, in our contemporary age, since, say, the Amsterdam Treaty (1998) the pacemaker role appears to have been taken by security constitution. Such a temporal succession should not be interpreted in the sense of one constitutional aspect replacing or supplanting another one ; rather, the constitutional dimensions complement each other. Thus, history of the economic constitution does not end with the first period of constitutionalisation. The economic constitution has retained its functional primacy, and, correspondingly, the non-economic constitutional dimensions have largely developed as a response to the demands raised or the consequences caused by the economic one. But relations between aspects of constitution can also be of a conflictual nature. Before the European Court of Justice, conflicts often assume the guise of contests between different types of rights : between, on the one hand, rights related to market freedoms and, on the other hand, civil and political or social rights.

Keywords: European constitution; economic constitution; social constitution; market freedoms; fundamental rights; European integration; ordoliberalism (search for similar items in EconPapers)
Date: 2011
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