Idea of the ‘Constitutionalized Treaty’

This entry discusses the curious phenomenon of the EU’s ‘constitutionalisation’, with a particular focus on what it means to ‘constitutionalise’ a treaty in the context of regional integration. The first section (A.) distinguishes between different types of ‘constitutional discourse’ around the EU legal order, thus situating the issue of treaty constitutionalisation in its broader theoretical framework. The following section (B.) focuses on the reconstruction of the ‘origins’ of treaty constitutionalisation in the EU, which considers both the fundamental role played by the ECJ and by academics and commentators in ‘constructing’ the idea of the constitutionalised treaty. What emerges from this analysis is how, while originally stemming from the process of European integration, the idea of the ‘constitutionalised treaty’ was also advanced for the purpose of consolidating and furthering integration itself. This second aspect is further investigated in section C., which analyses the way in which the idea of the constitutionalised treaty has increasingly assumed the role of a normative standard whose scope continues to go way beyond its original reach. After briefly discussing some of the academic contributions that accept a similar characterisation of the EU legal order, the final section (D.) considers the views of those who have raised scepticism concerning the EU’s process of constitutionalisation. In doing so, it highlights the possible ‘paradoxes’ that emerge from the idea of the constitutionalised treaty, including the potential challenges towards the EU’s legitimacy. Overall, the entry is addressed to both specialised and non-specialised audiences in the field of EU constitutional theory, as it seeks to provide an accessible yet in-depth summary of the historical events and both the doctrinal and theoretical contributions that have shaped the idea of the constitutionalised treaty in the EU.