THE MANY CONSTITUTIONS OF EUROPE The Edinburgh Centre for Law and Society Series Editors: Professor Emilios A. Christodoulidis and Dr Sharon Cowan Titles in the Series Law as Institutional Normative Order Edited by Maksymilian Del Mar and Zenon Bankowski Law and Agonistic Politics Edited by Andrew Schaap Public Law and Politics The Scope and Limits of Constitutionalism Edited by Emilios Christodoulidis and Stephen Tierney Transformations of Policing Edited by Alistair Henry and David J. Smith The Universal and the Particular in Legal Reasoning Edited by Zenon Bankowski and James MacLean Law and the Politics of Reconciliation Edited by Scott Veitch The Many Constitutions of Europe Edited by KAARLO TUORI AND SUVI SANKARI Helsinki University, Finland First published 2010 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2010 Kaarlo Tuori and Suvi Sankari Kaarlo Tuori and Suvi Sankari have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Tuori, Kaarlo. The many constitutions of Europe. -- (Edinburgh/Glasgow law and society series) 1. Constitutional law--European Union countries. 2. European Union countries--Politics and government. I. Title II. Series III. Sankari, Suvi. 342.2'4-dc22 Library of Congress Cataloging-in-Publication Data The many constitutions of Europe / by Kaarlo Tuori and Suvi Sankari. p. cm. Includes bibliographical references and index. ISBN 978-1-4094-0468-2 (hardback) 1 . Constitutional law--Europe. I. Tuori, Kaarlo. II. Sankari, Suvi. KJC4445.M36 2010 342.402--dc22 2010022189 ISBN 9781409404682 (hbk) ISBN 9781315555720 (ebk) Contents List of Contributors vii Editors’ Preface ix PART I MULTI-DIMENSIONALITy Of EUROPEAN CONSTITUTIONALISM 1 The Many Constitutions of Europe 3 Kaarlo Tuori 2 A Default Constitutionalism? A Disquieting Note on Europe’s Many Constitutions 31 Emilios Christodoulidis 3 Constitutionalism and the Multi-Coded Treaties of the EU: Changing the Concepts of Constitutionality 49 Inger-Johanne Sand 4 Constitutional Ideal Types in the Global Age: A Sociological Review 69 Sabine Frerichs PART II ASPECTS Of ThE ECONOMIC CONSTITUTION 5 European Competition Law: Catalyst of Integration and Convergence 91 Milène Wegmann 6 Failures or Ideological Preconceptions? Thoughts on Two Grand Projects: The European Constitution and the European Civil Code 109 Hans-W. Micklitz vi The Many Constitutions of Europe PART III ASPECTS Of ThE POLITICAL CONSTITUTION 7 Multilevel Constitutionalism: Looking Beyond the German Debate 143 Neil Walker 8 European Constitutionalism and the Democratic Design of European Governance: Rethinking Directly Deliberative Polyarchy and Reflexive Constitutionalism 169 Stijn Smismans 9 Could the Court of Justice Have Done Differently? 195 Suvi Sankari PART IV ASPECTS Of ThE SOCIAL CONSTITUTION 10 Social Constitution in Historical Perspective: Hugo Sinzheimer in the Weimar Context 219 Sakari Hänninen 11 Social Rights and Market Freedom in the European Constitution: A Reappraisal 241 Stefano Giubboni 12 Constitutional Issues in European Health Policy and Practice 263 Meri Koivusalo Index 281 List of Contributors Emilios Christodoulidis is Professor of Legal Theory at the School of Law of the University of Glasgow. Sabine Frerichs is Post-Doctoral Researcher at the Centre of Excellence in the Foundations of European Law and Polity research, University of Helsinki. Stefano Giubboni is Professor of Labour Law, University of Perugia. Sakari Hänninen is Research Professor at the Finnish National Institute for Health and Welfare (THL) and member of the Centre of Excellence in the Foundations of European Law and Polity research, University of Helsinki. Hans-W. Micklitz is Professor of Economic Law at the European University Institute (EUI) and Professor of Civil Law, University of Bamberg. Meri Koivusalo is a Senior Researcher at the Finnish National Institute for Health and Welfare (THL). Inger-Johanne Sand is Professor of Public Law, University of Oslo. Suvi Sankari is Researcher at the Centre of Excellence in the Foundations of European Law and Polity research, University of Helsinki. Stijn Smismans is Professor in Law and holder of the Jean Monnet Chair in European Law and Governance at Cardiff Law School. Kaarlo Tuori is Professor of Jurisprudence, University of Helsinki and Director of the Centre of Excellence in the Foundations of European Law and Polity research, University of Helsinki. Neil Walker is Professor holding the Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh. Milène Wegmann, Dr. Phil. (Bern), CIIA, Collaborator to Zentrum für Europäische Wirtschaftsforschung (ZEW), Mannheim. This page has been left blank intentionally Editors’ Preface ‘Le doute n’est pas une condition agréable, mais la certitude est absurde.’ In recent years, European constitutional discourse has been dominated by theoretical debates on constitutional pluralism as a deeper understanding of the co-existence of transnational and national constitutions. This book makes a contribution to the ongoing lively discussion on European constitutionalism by offering a new perspective and a new interpretation of European constitutional plurality. It adopts a different perspective on the many constitutions of Europe, preferring to understand ‘constitution’ not only as a concept of traditional constitutional law, but as a relational concept, and applies it here to distinguish between the economic constitution, the juridical constitution, the political constitution and the social constitution. This book combines diverse disciplinary approaches (different fields of law, political science, economics and sociology) towards these different aspects of the European constitution, bringing into the constitutional debate even other than merely constitutional scholars. Thus, in addition to providing a general discussion on the European constitution as a relational concept, the book also offers chapters on each specific constitution. One of the central objectives of this book, and also of the Finnish Centre of Excellence in the Foundations of European Law and Polity Research (Faculty of Law, University of Helsinki) under which this book was assembled, is to facilitate a dialogue between diverse scholarly approaches to European law and to address the legal theoretical implications of Europeanization. In 2009, the main emphasis of the Centre was on the interdependencies between various aspects of the European constitution and constitutional discourse. This multidimensionality of the constitution(s) of Europe inspired the Centre to collect selected contributions by members of the Centre and by its cooperating partners, as well as by its new and old friends, to be first presented, then developed further, and finally published in the form of this book. This cooperation proved that a dialogue across disciplinary boundaries is not only possible, but also fruitful. We wish to thank Ashgate for agreeing to publish it. Our special thanks go to Alison Kirk and Emilios Christodoulidis and, of course, to all the contributors. Helsinki, June 2010 Kaarlo Tuori and Suvi Sankari