Constitutional Law of the European Union

This book offers an approach that concentrates on those aspects of European legal materials that are of constitutional interest. It takes the basic themes of constitutional law relevant in an established federal structure (principally the United States) as a "template" and then organizes analysis of the provisions of the various EU Treaties and the caselaw in order to bring out the degree to which they provide the building blocks of an EU Constitution. Perhaps the most radical aspect of this approach is to be found in Part III, where the authors view the Treaties' free movement provisions as constitutional restrictions on the Member States' ability to affect inter-State commerce. This enables those provisions to be examined in the context of the division of powers between the Union and the Member States in much the same way as one might study the U.S. Commerce Clause, and in particular the dormant commerce clause doctrine. Moreover, the authors add a new perspective on the impact of those restrictions by focusing on various areas of legislative activity rather than structuring the materials around the Treaty provisions as such.

The merit of this approach is that it relates the often complex and unfamiliar legal structures and concepts of the European Union to subject-matter that should be familiar to students who have already taken a course in Constitutional Law. It also avoids distractions that could otherwise arise from extensive probing into substantive areas of EU law that would be better addressed through discrete in-depth studies based on an entirely different course theme, such as corporation or antitrust (competition) law.

Other departures from conventional treatment of EU law include an extended treatment of Fundamental Rights, and unique approaches to the relationship of EU law with Member State law and with international law. The book also incorporates a final chapter on the Treaty of Lisbon—which includes most operative provisions of the "Constitution" rejected by referenda in France and the Netherlands—in anticipation of its ratification, and other initiatives that are shaping the future of the EU. It thus provides a bridge between the law as it existed at the end of 2007 and its likely evolution over the foreseeable future.