This Special Section sets forth the thesis that European constitutionalism is evolving towards what many call ‘total constitutionalism’. This evolution is driven by civil society’s demand for government services, elite special interests, economic globalisation, and judicial activism. The process is far advanced, with courts rendering judgments across a wide range of political and policy domains, to the point now of substituting themselves for legislatures and even constitutional conventions, with far-reaching implications for majoritarian democracy. Yet, little critique of this trend can be found in the academic literature. This Special Section begins to address this gap with critical analyses undertaken from an eclectic spectrum of contextual perspectives by our contributors: Martin Loughlin, Alexander Somek, Anna-Bettina Kaiser, Gaëtan Cliquennois and Simon Chaptel, and Graziella Romeo.

EU law is underpinned by the fundamental premise that each member state respects EU law and provides equivalent and effective fundamental rights protection. In Opinion 1/17, the Court of Justice held that the principle of mutual trust is not applicable between member states and third countries. Yet, from its case law it appears that the apparently closed circle of trust may nonetheless be opened up to some closely associated third countries, although the foundations underpinning mutual trust may not (fully) exist with respect to those countries. This article examines how this observation may inform our understanding of the principle of mutual trust within the EU and raises the question of whether the current conception of mutual trust can be maintained.

European Council – Political and informal role – European Council as formally bound by the principle of institutional balance yet challenging it – Prohibition for the European Council to exercise legislative functions – Multiannual Financial Framework – Creation of Next Generation EU – Suspension of the enforcement of the Rule of Law Conditionality Regulation – Political directions becoming de facto binding – Formal lack of legally binding effects leading to absence of scrutiny by the Court of Justice – Inconsistency between Treaty law and institutional practice

Harnessing the economic and social value of health data in the EU – The European Health Data Space Regulation (the Regulation) as a cornerstone of data-driven healthcare and research – Balancing innovation with fundamental rights and European constitutional values – The Regulation within the broader process of European integration in public health – Contribution of the Regulation to the Digital Single Market and the European Health Union – Limits of member state action in a Union based on the rule of law – Constitutional tensions between strategic policy ambitions and existing EU competences – Critical assessment of the Regulation’s compatibility with the EU constitutional framework – Pathways to address identified shortcomings through constitutional and institutional reforms.

The revolutionary promise of European Enlightenment – The shadow side of enlightened thought – The modern idea of a constitution – The decline of classical constitutionalism – The rise of the total constitution – Controversy over the total constitution – The perspective of cosmopolitan constitutionalism – The total constitution’s relationship to the total state.

Legal transplants – Dole test – Sebelius and coercive federalism in the US – Expansion and legality of spending conditionality in the EU – Dole-style test under EU law – Connection between EU funds and legal bases – Germaneness test in the Conditionality Regulation judgments – Cohesion as quasi-general spending power – Clarity of the conditions to EU spending – Horizontal conditions – Regulatory and enforcement conditions – Competence creep – Ban on illicit conditions and its enforcement – Political safeguards of federalism in the US and the EU – Limits of financial induction in the EU – Financial coercion as manifest disproportionality.

This article critically examines the role of constitutional interpretation in sustaining and contesting the model of total constitutionalism within the EU. It explores how interpretive approaches associated with the constitutionalisation of the European legal order become vulnerable where their underlying normative assumptions are unevenly shared or historically contingent. Against the backdrop of Europe’s differentiated development of constitutional cultures, the article shows how textualist and formalist interpretive approaches have been mobilised to reassert sovereignty through the language of constitutional supremacy and identity. It argues that these interpretive conflicts expose broader tensions within European constitutional discourse, raising questions about the relationship between supremacy, sovereignty, and democratic legitimacy, and the viability of supranational constitutionalism detached from its political and societal foundations.

The ‘total state’ is a polemical concept used by constitutional theorists in the 1930s to characterise a decline of state authority: a state made to intervene into all areas of social life becomes, in their view, weak. This concept can be transferred, for heuristic purposes, to the authority of constitutional law. A total constitution is omnirelevant – no longer meant only to curb state action, but also to guide policymaking. Like the total state, the law of the total constitution risks becoming prey to the forces ruling the day. This weakness is exacerbated when adjudicating bodies embrace symbolic politics. The KlimaSeniorinnen decision of the European Court of Human Rights serves to elucidate this issue.

Accusations of a ‘total constitution’ in Germany – Alleged excessive constitutionalisation of political life and the narrowing of political processes – The role of constitutional courts in this process – Constitutionalisation of the state of emergency – German emergency constitution – Effectiveness of a high degree of constitutionalisation – Dependence on a specific set of cultural and historical circumstances – Doubts on any attempt to turn the high level of constitutionalisation into an universalisable ‘role model’.

Our article studies the main features of a constitutionalism trend reflected in the influence of private interest groups over jurisdictional expansion and interpretative advances operated by the European Court of Human Rights. We posit that liberal interests’ litigation bears potential to reinforce the trend toward constitutionalism beyond the influence played by internal factors such as the reforms of the court and the evolution of their rules. The existing framework of supranational rights jurisprudence aligns quite well with legal mobilisation and litigation pursued by liberals backed up in their efforts by private foundations whose contribution to the constitutionalisation process has been neglected by the literature. We show in particular how strategic NGO-driven litigation can (re)shape institutional design as well as the filtering and prioritisation of cases, interpretive reasoning, landmark judgments and the execution of judgments. This phenomenon of constitutionalisation, which is fought by conservative NGOs, has been eclipsed by the academic attention given to the technicalities of reform to the neglect of NGOs reshaping the evolution of the Court’s structure and jurisprudence, and the living instrument doctrine. Conversely, the constitutionalisation of the European Court tends to favour NGO-driven litigation, as the development of European human rights law increasingly depends in part on the impetus provided by liberal NGOs.