Gareth T. Davies (VU University Amsterdam, Faculty of Law) has posted Value Constitutionalism and Consent, forthcoming in Nika Bačić Selanec (ed), Reinforcing EU Constitutionalism, on SSRN. Here is the abstract:
The Court has been engaging in a project of value constitutionalism in recent years, raising the question where it acquires the legitimacy to impose majoritarian value preferences onto deviating Member States. Article 2 TEU is a part of an answer, but it is not enough to explain why the open-textured norms that it contains require a common interpretation, nor why the Court should have a monopoly on that task. To explain that one must turn to the idea of consent, and that Member States agreed to these terms of integration when they joined the EU. It is the idea that Member States freely chose to join what was clearly more than an economic zone which legitimates the use of legal force to bring them into line. But did they freely choose? Consent exists to varying degrees, measured partly by looking at the price and realism of refusal. Did the central European Member States really have a choice about joining the EU? What were their alternatives? Were the consequences of their compelled accession softened by allowing them, like the older Member States did, to help shape the EU, or were they presented with a take-it-or-leave-it standard form contract? The relationship to EU law of the post-communist Member States is importantly different from that of older Member States, not just from the perspective of current politics, but from that of constitutional principle. EU law needs to take account of this and move from merely extending Western interpretative preferences into the East, towards a more principled and constitutional frame for managing value diversity in the EU.
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