The Guardianship of European Constitutionality
Agustín José Menéndez has published a book chapter in a volume devoted to the analysis of free movement within the European Union internal market, edited by Mads Andenas, Tarjei Bekkedal, and Luca Pantaleo.
About the book
The reach of free movement within the EU Internal Market and what constitutes a restriction are the topics of this book. For many years the tension between free movement and restrictions have been the subject of intense discussion and controversy, and this includes the constitutional reach of the rights conferred by the Treaty of Lisbon. Anything that makes movement less attractive or more burdensome may constitute a restriction. Restrictions may be justified, but only if proportionate. The reach of free movement is fundamental to the Internal Market, both for the economic constitution and increasingly for individual rights in a European legal order that provides constitutional guarantees for rights, exceeding those of free movement. The interaction between fundamental rights and fundamental freedoms to movement distinguishes the EU legal order from the national legal systems.
The guardianship of European constitutionality
Under the cloth of the projection of the national principle of proportionality to Union law, European courts have radically altered the substance of European law. This has been done both to supranational and national constitutional law and by means of redefining its substantive content. European courts have through proportionality assigned an abstract and a concrete constitutional weight to the right to private property and to entrepreneurial freedom through the four economic freedoms and the principle of undistorted competition. That has placed outside the realm of the constitutionally possible key public policies without which some of the fundamental collective goods at the core of the Social and Democratic Rechtsstaat become extremely vulnerable. This chapter shows how this accentuated bias of the European socio-economic constitution follows from the way in which European courts have defined economic freedoms as the yardstick of European constitutionality. This entails the automatic assignment of the argumentative benefit to economic freedoms, the construction of all other constitutional goods in the semblance of economic freedoms, and the use of asymmetric standards of evidence when having to justify the adequacy and necessity of economic freedoms and other constitutional goods.
Chapter 8: The guardianship of European constitutionality: a structural critique of European constitutional review
Agustín José Menéndez
In: The Reach of Free Movement
Mads Andenas, Tarjei Bekkedal, Luca Pantaleo (eds)