Introduction

Many European Union (EU) lawyers believe that we ought to compare EU law to constitutional law, and the European Union's institutions to those of a state. Leading authors describe the core of EU law as the ‘constitutional law of the EU’, or have argued that the Union is an ‘autonomous political authority’ or that it can be compared to a nascent ‘republic’. The state analogy is supported by the suggestion that Europe has embarked on a journey towards ‘ever closer union’. The leading European philosopher Jürgen Habermas has written that he hopes to see the Union form strong federal-like institutions so as to accelerate the creation of a European ‘public sphere’. Such views have, for a long time, been presented as the most progressive and forward-looking accounts of the EU. They have also helped to develop the law. The Court of Justice of the European Communities (ECJ) has ruled that Community law is a ‘new legal order’ that constitutes a hierarchical legal order vis-à-vis the national legal systems and that the treaties constitute the ‘constitutional charter’ of the Union. The doctrines of direct effect and supremacy have brought EU law very close to the model of a federal public law. The theory that underlies much of the interpretation of EU law by the Court of Justice seems to be a theory of public law analogous to that of federal legal systems.

Yet, such interpretations leave much unexplained.