Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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4 rights associated with them, e.g. negative rights of (economic) freedom on the one hand vs. positive (social, political, and procedural) rights on the other. These systematic difficulties can very well be illustrated by concrete conflicts about the legal status quo of the European Union: E.g., the enforcement of supremacy and Direct effect as cornerstones at the level of “constitutional principles”; the jurisdiction relating to non-discrimination and equality (the extension from a negative, market-related principle to a universal norm of equality even allowing affirmative action) is another striking example, as well as the incremental incorporation of social rights and protective measures; since the inclusion of “European Citizenship” in the treaty of Amsterdam the jurisdiction about the political and procedural notions of citizenship-rights has been contested (regarding different access-rights for instance). Consequently, one practical effect of these disputes is that the actual implementation of what might be called the “acquis” varies among the (old) Member States – existing opt-out and enhanced cooperation agreements are but one example; apart from that, however, it is illusionary to expect harmonisation to be unitary and fully accomplished. Regarding the enlarged integration, it is quite obvious that the idea of transposing the “aquis” is crucial for upholding the very idea of a Community (but this is always the case) – yet, the above mentioned examples show that any streamlining of the European system by means of fully and “in toto” incorporating the “aquis” is a process that is (still) open-ended and reversible. Problems of incorporation might well be rooted in structural and practical “defects”, but they may as well be provoked by serious, principled and justified contestation. To our mind, in order to clarify the source of the problems, a procedural openness is necessary to enable mutual and reciprocal dialogue to adjust the “aquis” acceptable to all participants (see below). b.) This line of argumentation indicates to a certain extent that – in quite a similar way – the worries about the constitutional status quo of the European Union take a wrong way. It is misleading to consider the status of the Constitutionalisation of the European Union as accomplished. The picture the critiques draw of the situation of accession is too prefigured and static insofar as it suggests that accession is for the new Member States just a matter of receiving a constitutional order prêt-a-porter.
5 Even in reality, as certain studies showed, things went better: The prospect of enlargement created in the first place the opportunity and practical pressure for further constitutional developments after Copenhagen. The accession process offered the chance (which was willingly used) to set up debates and dialogues about foundational constitutional principles (esp. democracy) of the Union (see Dangerfield 2006, Ellison 2005, Walker 2003, Weiss 2005). The according institutional reforms were highly influenced by the vision of an enlarged Union: “The eastern enlargement influenced the constitutional developments in the EU even beyond the issue of merely institutional reforms. The political conditions for membership set at the Copenhagen summit and the importance of these values in the accession negotiations helped to stimulate the sensitivity for democracy and basic values within the EU and its constitutional order itself, which influenced the agenda at Amsterdam IGC” (Weiss 2005: 3, stress by Auberger/Hitzel-Cassagnes). In systematic terms, this quote hints at two important points. On the one hand, we should give up notions of the Enlargement as an external reference point: Enlargement (or better: the process of accession) is inevitably part of the European Constitutionalisation and vice versa. At the same time but on the other hand, if we take this internal perspective (not differentiating between in- and outsiders in a way), we can conceptually interpret the present situation as a foundational one insofar as the inclusion of “new voices” creates a new “constitutional moment” of its own. Thus, the focal point should not be the potential loss of the “old” order but the openness of constitutional processes and revisions. We want to take these introductory remarks as a starting point for introducing a normative interpretation of the Enlargement process which we will take as a conceptual background to evaluate the legal, i.e. constitutional, conflicts and developments relating to the above mentioned question of the structural impacts of enlargement (2). For the sake of clarifying the systematic and normative challenges associated with an enlarged Union we will discuss four selected issues exemplifying considerations of fragmentation, incommensurabilities and asymmetries (3).
Page 1 and 2: Tobias Auberger and Tanja Hitzel-Ca
Page 3: 3 common feature: They conceive the
Page 7 and 8: 7 openness and reversibility. Thus,
Page 9 and 10: 9 portant role in the European fore
Page 11 and 12: 11 Apart from the fact that these c
Page 13 and 14: 13 Weiss 2005, Dangerfield 2006, Ba
Page 15 and 16: 15 hierarchies and asymmetries are
Page 17 and 18: 17 2. By requiring national courts,
Page 19 and 20: 19 tional role and function but als
Page 21 and 22: 21 Biography (incomplete) Albi, Ann
Page 23 and 24: Kühn, Zdenek (2005) The Applicatio

Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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