The Politics of Form in European Constitutionalism

Abstract

The first two decades of the twenty-first century have ushered upon Europe a seemingly unending string of existential crises. From financial meltdowns to mass migration, from a pandemic and the impending climate catastrophe to the war in Ukraine, the EU has been facing pressures at a pace and on a scale far beyond what it had experienced during its not-entirely-uneventful past. The typical observer of European integration will likely conclude that, despite missteps and failures, the EU has managed not to succumb under the weight of these challenges. A sense of pragmatism and possibility, born in part out of pure despair, has driven its more successful policies and legal innovations. A modicum of institutional imagination was on display during the financial crisis when new mechanisms were created outside the Treaty’s formal architecture but not entirely beyond its constitutional purview. While the EU asylum system tragically collapsed during the 2015 refugee crisis, enough of a basic framework remained in place to handle, a few years later, the influx of Ukrainians fleeing their Golgotha. During the sad, protracted Brexit episode, the EU withstood London’s fraught attempts to break the united front of its member states. Nor have the EU’s institutions failed, despite some heart-stopping missteps, the task of setting up relief during the Covid public health emergency. The voice from Luxembourg, however tardy and dim, could be heard as the EU’s eastern lands saw