Matej Avbelj - Constitutional Pluralism in the European Union and Beyond

CONSTITUTIONAL PLURALISM IN THE EUROPEAN UNION AND BEYOND

Constitutional pluralism has become immensely popular among scholars who study European integration and issues of global governance. Some of them believe that constitutionalism, traditionally thought to be bound to a nation state, can emerge beyond state borders most importantly in the process of European integration, but also beyond that, for example, in international regulatory regimes such as the WTO, or international systems of fundamental rights protection, such as the European Convention.

At the same time, the idea of constitutional pluralism has not gone unchallenged. Some have questioned its compatibility with the very nature of law and the values which law brings to constitutionalism. The critiques have come from both sides: from those who believe in the traditional European constitutionalism based on a hierarchically superior authority of the European Union as well as from scholars focusing on constitutions of particular states.

The book collects contributions taking opposing perspectives on constitutional pluralism some defending and promoting the concept of constitutional pluralism, some criticising and opposing it. While some authors can be called the founding fathers of constitutional pluralism, others are young academics who have recently entered the field. Together they offer fresh perspectives on both theoretical and practical aspects of constitutional pluralism, enriching our existing understanding of the concept in current scholarship.

Studies of the Oxford Institute of European and Comparative Law

Editor

Professor Stefan Vogenauer

Board of Advisory Editors

Professor Mark Freedland, FBA

Professor Stephen Weatherill

Professor Derrick Wyatt, QC

Volume 1: The Harmonisation of European Contract Law: Implications for European Private Laws, Business and Legal Practice

Edited by Stefan Vogenauer and Stephen Weatherill

Volume 2: The Public Law/Private Law Divide

Edited by Mark Freedland and Jean-Bernard Auby

Volume 3: Constitutionalism and the Role of Parliaments

Edited by Katja Ziegler, Denis Baranger and AW Bradley

Volume 4: The Regulation of Unfair Commercial Practices under EC Directive 2005/29: New Rules and Techniques

Edited by Stephen Weatherill and Ulf Bernitz

Volume 5: Human Rights and Private Law: Privacy as Autonomy

Edited by Katja Ziegler

Volume 6: Better Regulation

Edited by Stephen Weatherill

Volume 7: Forum Shopping in the European Judicial Area

Edited by Pascal de Vareilles-Sommires

Volume 8: The Reform of Class and Representative Actions in European Legal Systems: A New Framework for Collective Redress in Europe

Christopher Hodges

Volume 9: Reforming the French Law of Obligations: Comparative Reflections on the Avant-projet de rforme du droit des obligations et de la prescription (the Avant-projet Catala)

Edited by John Cartwright, Stefan Vogenauer and Simon Whittaker

Volume 10: Performance-Oriented Remedies in European Sale of Goods Law

Vanessa Mak

Volume 11: Current Issues in European Financial and Insolvency Law: Perspectives from France and the UK

Edited by Wolf-Georg Ringe, Louise Gullifer and Philippe Thery

Volume 12: Article 82 EC: Reflections on its Recent Evolution

Edited by Ariel Ezrachi

Volume 13: Prohibition of Abuse of Law: A New General Principle of EU Law?

Edited by Rita de la Feria and Stefan Vogenauer

Volume 14: Constitutional Pluralism in the European Union and Beyond

Edited by Matej Avbelj and Jan Komrek

Constitutional Pluralism in the European Union and Beyond

Edited by

Matej Avbelj and Jan Komrek

OXFORD AND PORTLAND, OREGON
2012

Published in the United Kingdom by Hart Publishing Ltd

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The editors and contributors severally 2012

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ISBN: 978-1-84946-125-2

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PREFACE

The essays published in this volume are the revised papers first presented at a conference that took place on 2021 March 2009 in Oxford. The conference was organized under the auspices of the Institute of European and Comparative Law of the University of Oxford and sponsored by the Oxford/Stockholm Wallenberg Foundation Venture and the Faculty of Law, University of Oxford. We would like to thank Professors Stephen Weatherill, Stefan Vogenauer and Ulf Bernitz for their support of the conference and also during the time when the manuscript of this volume was being produced. We would also like to thank all those represented in this volume or not who contributed to the success of the conference as speakers and chairpersons, and Jenny Dix for her administrative support.

With this volume we hope to further stimulate the debate on the legal nature of European integration and globalization, whether or not conceived in constitutional and/or pluralist terms.

Ljubljana and London, May 2011

Matej Avbelj

Jan Komrek

CONTENTS

Matej Avbelj and Jan Komrek

Neil Walker

Mattias Kumm

Miguel Poiares Maduro

Daniel Halberstam

Franz C Mayer and Mattias Wendel

Ren Barents

Robert Schtze

Ola Zetterquist

Jan Komrek

Julio Baquero Cruz

Gareth Davies

Daniel Sarmiento

Xavier Groussot

Alexander Somek

Matej Avbelj

LIST OF CONTRIBUTORS

Matej Avbelj, Assistant Professor of European Law, Graduate School of Government and European Studies, Slovenia

Julio Baquero Cruz, Member of the Legal Service of the European Commission; Visiting Professor at Sciences Po (Paris)

Ren Barents, Director of Research and Documentation, Court of Justice of the EU; Professor of European Community Law, Maastricht University

Gareth Davies, Professor of European Law, VU University Amsterdam

Xavier Groussot, Associate Professor of European Union law, Lund University