One of the most fundamental obstacles to EU constitutionalization is said to be the lack of a European demos, which is seen as a precondition for any constitutional system.The term ‘demos’ originally referred to the common people of an ancient Greek state. Today, demos can describe the populace of a democracy, as a political unit. European Member State courts, such as the GFCC, have raised prominent concerns that further constitutionalization is constrained by the absence, in Europe, of a common attachment as an entity; they emphasize that there is no ‘European people’ and no future possibility thereof, meaning that the final say in constitutional matters will always rest with each European Member State.

In both the court of public opinion and modern legal scholarship, our Europe of today appears to lurch from crisis to crisis. These crises are political, cultural, social, environmental and now also economic. A severe financial crash has sent shockwaves around the continent, exposing the fault lines in Europe’s institutions and constitution. After the near-collapse of Greece’s national economy, the EU focused heavily on inventing new mechanisms to provide economic stability for the euro-currency countries. However, deeper issues with the broader European project, which had festered in the dark for years, were revealed and thrown into stark relief by the financial floodlights.

The absence of a single legal system, according to critics, is one of the three most important dimensions in which further European constitutionalization finds itself stymied. For critics, a constitutional polity must be founded with one common legal system. From this view, if the European Union has no common understanding of the rule of law, it is doomed. Concerns include (1) an unclear role for a Federal Court and its appellate powers, (2) a lack of uniform trans-European procedures for selection of justices, (3) a lack of clear rules for constitutional review, (4) indeterminate jurisdiction vis-à-vis the (Member) States and (5) the unresolved matter of ultimate legal authority itself (Kompetenz-Kompetenz).

In Chapter 1, by way of brief reminder, I introduced the European Union’s historical development, highlighting the constitutional underpinnings of the current successive economic, social and political crises in Europe. After summarizing relevant literature, my goal was to outline and analyse an increasingly constructive series of judicial dialogues in Europe, which I believe has brought to light a number of perceived obstacles to three key demos, civitas and ius dimensions of European constitutionalization.

European constitutionalization continues to advance along the path that has been paved over recent decades. Contrary to the view advanced by many critics, many obstacles revered as insurmountable for Europe on this long journey, are either misconceptions or have been redressed by the Court of Justice to a degree such that they no longer stand in the way of further constitutionalization. However, as discussed at length in Chapter 5, there is one, remaining obstacle to be addressed. One point of contention continues to stand firm: the continuing and notable lack of a common European public sphere. It would be a mistake to view this as a practical or factual issue; rather, it is a legally constructed dilemma and, indeed, it can be addressed in legal ways.

Democracy and the EU have a heated relationship that has been much debated – by legal scholars and the European courts alike. For many, it is inherently difficult – if not impossible – to claim that the EU, as a whole, is reflective of democratic ideas and practices. There are, allegedly, particular areas of deficiency – from the usurping of domestic legislative jurisdiction, to the absence of civic responsibility among the peoples of Europe per se. As this chapter will demonstrate, it is my belief that most of the particular areas of alleged deficiency are not, in fact, serious obstacles to the European constitutionalization process. Rather, many are a natural and predictable occurrence.