In the past decade or so, the text of the EU Treaties has stayed the same, yet their reading has undergone significant changes. The language of anti-formalism has triumphed over formalism, obviating the need for complex political debates and democratic processes inherent to actual Treaty revisions. This method of constitutional reinterpretation was ushered in by the NextGenerationEU and seems now, in the post-Draghi-Report world, the dominant way for the Commission to address its political priorities. This article explores the invisible side of constitutional change by legal engineering. It will examine the place of Treaty respect in the old vocabulary of EU law and discuss how the NGEU drove a wedge into this established vocabulary. The NGEU experiment demonstrates how reinterpretation of core Treaty provisions may provide solutions to immediate functional needs but tends to result in ill-functioning governance models that fail to provide a stable long-term basis for integration. Further, democratic participation, which lacks an established vocabulary in the EU legal language, is easily overlooked. Yet, it is the democratic process that breathes life into constitutional change. A constitution animated by political opportunism and technocratic reinterpretation rather than broader societal evolution is not a living constitution. At best, it is a puppet constitution, at worst, it is dead.

The notion of constitutional identity rests on a seemingly inevitable tension: it is seen both as a source of inclusive social cohesion and as a potentially exclusionary concept invoked to justify populist claims and divergent interpretations of the rule of law and human rights. This has led legal scholars to redirect the understanding of constitutional identity towards an exclusively legal and functional definition in line with the formulation of Article 4 (2) TEU, which protects the ‘national identities’ of the European Member States: identity is assured so far as it is inherent to the ‘fundamental structures, political and constitutional’ of the Member States. This contribution criticises this approach, because it ignores the dynamic nature of a community and its attachment to its ethnocultural affinities, possibly undermining the viability of an inclusive polity. This is a concern, especially for multinational communities like the European Union. It then proposes an alternative conception of constitutional identity as narrative identity, in which preconstitutional identity emerges as the ghost in the shell of constitutional identity. A narrative conception of constitutional identity bridges the civic/ethnic divide by giving ethnocultural elements a place through narrative integration of preconstitutional identities but avoids an illiberal logic by putting them forward according to a retrospective logic as projections rather than as a robust core. Starting from that narrative conception, the relationship between preconstitutional and constitutional identity is further clarified by investigating their interplay across six binaries that often recur in the debate: continuity/change, sameness/difference, unity/plurality, sameness/difference, fact/fiction, affect/ratio.

The concept of constitutional identity has recently been invoked to impose limits on fundamental rights. In this article, I explore the relation between constitutional identity and fundamental rights and argue that constitutional identity – when properly understood – does not stand in tension but rather presupposes respect for fundamental rights. In the first part of the article, I develop a conception of constitutional identity as a set of normative commitments of a community that reflects its shared experience of establishing, and being subject to, a constitutional form of authority. In the second part, I argue that, while different constitutional identities can be idiosyncratic, they must incorporate respect for fundamental rights if their claim to reflect such common experience is to be credible. The upshot of the argument is that fundamental rights should not be understood as external constraints that limit the scope of constitutional identity, but as internal requirements inherent to the concept of constitutional identity. Although this understanding does not eliminate the difficulties which arise from different interpretations of fundamental rights, it does allow for a more productive engagement with constitutional identity claims, and for analysing them in light of fundamental rights standards they must already accept.

Since the Global Financial Crisis, the European Union (EU) has gone from crisis to crisis. The chronic growth and productivity problems have been compounded by the poor management of the Eurozone crisis, by the no-longer postponable green and digital transitions, and by the changing geopolitical environment, with the end of the old multilateral order. The European institutions still embed the principles of an old consensus based on market efficiency, and do not allow for macroeconomic and industrial policies for the structural transformation. We discuss possible reforms to realign the EU institutions with the needs and the challenges the bloc faces.

This article addresses questions about the identity of the subject of constitutional law from a historical-sociological perspective. It aims to reconstruct, beneath the surface of constitutional texts, the actual material subjects that commonly give rise to constitutions. To do this, it isolates the constituent conjunctures in which constitutions have typically been written, and it describes the social pressures that obliged members of different societies to articulate their subjectivities in constitutional fashion. It uses this reconstruction to suggest a new framework for approaching questions of constitutional subjectivity and legitimacy, as, contrary to more deliberative methods, it explains how experiences of military violence usually shaped the emergence of constitutional subjects. On this basis, it argues that constitutions typically acquired stable legitimating force, not by enacting the will of identifiable constitutional subjects, but by displacing such subjects into a manageable form, separate from their military emphases. It cautions against idealist theories of constitutional subjectivity, arguing that most constitutions create legitimacy for government specifically as they promote societal integration in procedures that are not defined by the subjects to which they attribute their authorship. It concludes by addressing some current examples of constitutional crisis, considering how these have been shaping by literalist understandings of constitutional subjectivity.

The recent turn to market activism is transforming the politics around the state and capitalism, while significantly restructuring markets. We focus on one important but understudied element in this development: the securitization of market competition in the European Union. We argue that European political actors are strategically using specific narratives to construct competition policies in a new way, one that implicates the geopolitical standing of the EU and its national security. This contrasts with the longstanding view of EU competition policy as existing in a separate sphere, disembedded from politics, where market efficiency is paramount. To empirically capture this change, we undertake a systematic analysis of DG Competition Annual Reports, using a language-analysis schema over the decade from 2013 to 2023. Our findings demonstrate that this securitization strategy has been consistently increasing over time in the EU, evidenced in the rhetorical use of crises, the linking of markets to a larger set of issues and policy goals, the invocation of geopolitical pressures, and the framing of a need for the consolidation of EU power. We note, however, that this policy turn towards securitization of economic policy brings substantial political tensions given the EU’s limited democratic accountability.

This article brings to the debate on constitutional identity a category borrowed by feminist thought: patriarchy. Generally considered as a pre-existing identity, flushed out by a modern/progressive constitutional identity, this paper claims that patriarchy can be indirectly perpetuated by certain constitutional provisions if not differently interpreted. By focusing on the issue of the exclusion of women from the priesthood in some majoritarian religions spread in Europe, the paper observes that an effective impossibility of challenging this exclusion in front of a judge, due to the operation of the constitutional principle of religious freedom, creates a growing conflict with another constitutional principle: that of gender equality. The paper notes that this inner conflict between two core constitutional principles, both crucial to the Western constitutional identity, is overlooked by constitutional research and invites constitutionalists to self-reflect on the historical limits of the constitutions that were created by men, in states that often coalesced with religious institutions to assert patriarchy. The paper claims that the constitutional indifference toward the religious gap is no longer constitutionally sustainable in a context in which the EU says that there is no democracy without gender equality. The principle of religious freedom needs to be re-interpreted to readdress a historical injustice suffered by women in the long patriarchal process that excluded them from the sacred. Without imposing upon religion institutions by dictating their faith, the paper suggests some practical measures that can remedy the patriarchal harms suffered by women after they lost access to the altar.

This article applies the concept of economic activism, the theme of this symposium, to explore the ECB’s role within a more interventionist European Union. “Central bank activism” brings together and structures several legal, political, and economic debates on the changing role of central banks. The article focuses on the ECB’s mandate, starting from the premise that both its primary mandate, price stability, and its secondary mandate, support for the Union’s general economic policies, are subject to constitutional contestation as to their limits.The article suggests that these contestations should be situated within two core dimensions of EU constitutional law. The first reflects the principles of democracy and institutional balance, which concern the allocation of authority between independent, non-majoritarian institutions and electorally accountable political bodies. The second is the relationship between public intervention and market mechanisms. The article argues that the Union’s monetary constitution allows a significant degree of interpretive flexibility, but that such flexibility must remain within, and be guided by, the Union’s constitutional core: democracy, institutional balance, and market functioning. This framework helps in thinking about ECB activism within the broader turn towards economic activism in the EU. The article suggests that relying on the secondary mandate, rather than expanding the primary mandate, may offer advantages within this economic, political, and constitutional turn.

This paper examines some institutions of French public law and their transformations induced by European integration. It shows how institutions rooted in a specific political culture that long aimed at ensuring political liberty through the active role of la loi have been challenged by other institutions designed in the first place to protect civil liberties. It argues that the loi-based republican institutions of public law, that were inherited from the French Revolution and 18th century political thinkers, such as Montesquieu and above all Rousseau, have been significantly reshaped. That did not happen through politics, nor through another ‘French-style’ revolution. Ironically enough, it happened more modestly through law, within the meaning of le droit (and courts) as opposed to la loi (and the legislator), that is through those very means of political change that Republican France had consistently rejected ever since the Revolution. The French example showcases how paradigmatic political changes, from messianic republicanism to global constitutionalism, may thus occur, without a revolution, through the smooth medium of (European) law.

The balance sheet of the ECB expanded greatly after the Great Crisis of 2007-9, similarly to other core central banks, but this development does not signify the adoption of a new ‘interventionist’ stance. The expansion of the balance sheet by core central banks reflects a profound change in the framework of monetary policy responding to pressures generated during and after the Crisis. In the case of the ECB, however, the expansion also resulted from attempting to cover the cracks of the fragmented European money market to protect the euro. This fragmentation persists and concern about the euro continues to shape ECB policy. The resurgence of inflation since 2022 led the ECB to contract its balance sheet, again similarly to other central banks, making a new framework necessary for monetary policy. But it is not clear what that would be, given the fragmented European money market. The monetary policy of the ECB is in a quandary reflecting the structural deficiencies of the Eurozone.

Industrial policy is a substantial enterprise that goes to refashioning the structures of economic activity to realise public goals. To that end, it historically relies on a State-industry resettlement that recasts State-industry relations. This resettlement also generates the economic knowledge that is a prerequisite for achieving these goals and sets out new forms of collective action to stymy change. However, until the 2024 reforms incorporating it within the European Semester, EU Industrial Policy was not associated with any such resettlement. This weak institutionalisation meant, inter alia, its goals proliferated in an undisciplined way, industrial knowledge was weakly embedded, and the Commission was more concerned with vetting than cultivating new forms of collective action. If this policy thus centralised considerable power within the Commission, there is good reason to be sceptical about what will be achieved. To that end, this article argues for an Inter-Institutional Agreement that would both temper these problems and ensure this policy is not simply about collective goals but is a more pluralistic and responsive endeavour. This Agreement would commit the EU to realise three principles. Constraint would require institutional power to be justified and exercised with moderation. Integrity would require EU institutions to reflect continually on whether individual measures or processes should be sustained. Responsibility would hold them not only accountable for their actions and omissions but also responsible for discharging the wider public interest that falls within their aegis.

The article traces the trajectory of state activism in the EU and explores the institutional implications of its recent revival. It contends that, within the current European constitutional landscape, there is a strong demoicratic case for pursuing activist policies at the national level, with the EU serving as an enabler. Within the existing treaty framework, however, EU-enabled state activism may assume either an equalising or an asymmetric form. In the equalising mode, the EU helps narrow fiscal disparities among Member States, promoting a more balanced deployment of fiscal and industrial policies across the single market. In the asymmetric mode, by contrast, activist tools remain accessible primarily to Member States with substantial fiscal capacity. Crucially, the choice between these alternatives does not stem from democratic deliberation or political judgment, but rather from extant treaty constraints conceived at a time of subdued state interventionism. As a result, equalising EU-enabled state activism seems possible only in times of emergency, when EU institutions may temporarily loosen constitutional limits on national fiscal and industrial policy, adopt unconventional monetary measures, and muster the political consensus needed to approve significant fiscal programmes. In the absence of such emergencies, however, only the asymmetric form of state activism remains available – a mode of governance that poses serious risks to the integrity of the single market and to territorial cohesion. Thus, only treaty change, coupled with deeper political integration, could place state activism on a firmer footing and allow the EU to realise its equalising potential.