Constitutional reform in the European Union suffers from a post-functionalist dilemma: the options that are politically viable are not democratically legitimate and the options that are democratically legitimate are not politically viable. Against the background of the recent Conference on the Future of Europe and the involvement of transnational European Citizens’ Panels, this article asks whether there is any prospect of overcoming this dilemma and organizing fundamental reform of EU institutions that is both normatively legitimate and politically viable. For this, it examines four models of EU treaty reform and the way these have figured in actual EU reform processes: Intergovernmental Conference, European Convention, informal intergovernmentalism and a Citizens Convention. The article concludes that, as long as the European Union is best characterized as a ‘demoi-cracy’ in which political deliberation takes place primarily in national public spheres, the Intergovernmental Conference remains its main and inevitable forum for constitutional reform. Hence, alternative models of EU constitutional reform should be evaluated not so much on the basis of their potential to substitute the IGC but rather on their ability to catalyse the process and to pre-commit the member state governments.

Increasingly, populists and authoritarians have discovered for themselves the notion of constitutional identity as a practical excuse to sidestep transnational legal obligations, as well as to vindicate their constitutional projects on the whole from concerns about the rule of law and other shared European values. This has led some scholars to highlight the “dangers of constitutional identity,” brandishing it as an “inherently dangerous concept,” and suggesting that the concept ought to be abandoned. This Article argues that the anti-pluralist critiques of constitutional identity, while rightly criticizing the authoritarian appropriations of constitutional identity, ultimately go too far and draw the wrong conclusions. Simply dismissing the concept of constitutional identity will not lead to the disappearance of the meanings imparted through it. The authoritarian and populist appropriations of constitutional identity must be identified and understood as abuses of the concept. By eliding constitutional identity with its abuse, the anti-pluralist critique sacrifices a more intimate understanding of the realities of constitutional identity abuse to a likely unattainable normative vision of uncontested EU law primacy. In advancing this critique, I will further outline three potential avenues for understanding constitutional identity abuse, differentiating between its substantive, generative, and relational aspects. Constitutional identity claims can be abusive by virtue of their substantive content, how they have come about, as well as how they are advanced.

Scholarly consensus sees EU supremacy as “necessarily bidimensional”: the supranational dimension necessarily stands alongside the national dimension, which rejects the absolute and unconditional supremacy of EU law. I argue that this view of bidimensional supremacy is conceptually flawed and descriptively inaccurate. On the conceptual side, I identify the fallacy of symmetry (the idea that national and supranational perspectives on supremacy are similar in nature and equally reductionist), the fallacy of selection (the view that bidimensionalism alone can overcome what it perceives as an inevitable subjective bias in the choice between national and supranational supremacy claims), and the fallacy of construction (an originally shared popular sovereignty theory, which turns out to be riddled with biases that disrupt the equilibrium within the internally divided sovereign). On the interpretative side, I suggest that the empirical evidence in support of bidimensional supremacy is weaker than it is generally assumed. I then offer an interpretation of the PSPP judgment of the German Federal Constitutional Court, which holds a judgment of the Court of Justice of the European Union to be ultra vires, unlawful and thus non-binding. PSPP presents a problem of German origins and cast, rather than one stemming from the inner structure of EU constitutionalism. At most, PSPP represents a contingent, rather than necessary, and thus unexceptional instance of bidimensional supremacy.

This paper analyses the mutual influence and self-perpetuating cycle of legitimacy of EU legal scholars and the Court of Justice of the European Union (CJEU) in expanding and broadening the free movement rights of Union citizens and their family members. It is argued that legal scholars have played a dual role in promoting the constitutional paradigm of an ever-expanding scope of directly enforceable residence and movement rights in the EU. First, by presenting the expansion of free movement rights as an inevitable outcome of the EU constitutional order based on directly enforceable individual rights, scholars have played a significant role in legitimizing the jurisprudence of the Court in the face of initial resistance from the member states. Second, legal scholars have been an important source for the Court of Justice in developing its case law in this area. The Advocates General in their opinions have drawn on an expanding field of scholarship presenting the expansion of free movement rights as an inherent feature of the EU as a constitutional legal order. Spurred by the objective of turning the EU into more than an internal market, the opinions of the Advocates General have mostly been followed by the Court. Legal scholars have thus served not only as a legitimizing force, but also as a source of inspiration for the perceived constitutionalization of free movement rights in the EU.