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AbstractFrom the start, Britain's feelings towards European integration were complex; and when Britain finally joined the 'common market' in 1973, its reasons were predominantly of an economic nature. Its profound doubts of any 'federal' or 'political' union would become a recurring theme throughout its membership; and, in later years, Britain's critical attitude towards transfers of legislative powers to the European Union found numerous expressions in a wide range of 'opt‐outs'. They gave the United Kingdom, in the words of the British government, a unique place within the Union. However, even this halfway house 'inside' and 'outside' the European Union could not prevent a British referendum in which the majority of British citizens decided to opt out of Union membership altogether. This article offers a very short historical overview of British membership in the Union. Six key moments in the story of British membership will illustrate the complex relationship between Britain and the European Union.

Abstract
Are the trade philosophies behind the EU internal market and the WTO international market converging or diverging; and are we, or are we not, moving towards a 'common law of international trade'? Twenty years ago, an interesting—and swiftly famous—answer to this question was given by Joseph H.H. Weiler. Studying the 'constitution of the common market', the historical evolution of free movement law is here divided into five periods or generations. The underlying Weiler thesis is thereby as simple as it is beautiful: starting with an early radical philosophy in Dassonville, the European Union has gradually and consistently moved away from its original hyper-liberal approach towards an ever more deferential approach; and the transformation of Article 34 TFEU into a discrimination format ultimately leads to a convergence with international law. What are the empirical and normative credentials of this stylised construction of the internal market? This article argues that there are fundamental shortcomings in this standard interpretation of the evolution of the internal market, and that a historical reconstruction arrives at a very different empirical and normative picture. What can this 'revisionist' result mean for EU law scholarship in general? If EU constitutionalism wishes to 're-constitute' its object of study properly, it needs to abandon the abstract ways of philosophizing that have become commonplace in the last 25 years. Part and parcel of this methodological renaissance must be a renewed commitment to test (constitutional) theory against (judicial) practice.

AbstractClassic constitutional thought considered the power to conclude international treaties to fall within the executive's exclusive domain. But this nineteenth‐century logic hardly convinces in the twenty‐first century. For the function of international treaties has dramatically shifted from the military to the regulatory domain; and in the wake of this 'new internationalism', the traditional divide between 'internal' and 'external' affairs has increasingly disappeared. Has this enlarged scope of the treaty power also triggered a transformation of its nature; and in particular: has the rise of 'legislative' international treaties been compensated by a greater role accorded to parliaments? This article explores this question comparatively by looking at the constitutional law of the United States and the European Union. Within the United States, international treaties were traditionally concluded under a procedure that excluded the House of Representatives; yet with the rise of the Congressional‐Executive‐Agreement in the twentieth century, this democratic deficit has been partially remedied. We find a similar evolution within the context of the European Union, where an increasing 'parliamentarisation' of the treaty power has taken place. Yet a democratic deficit here nevertheless also continues to exist.

Cet article fait l'hypothèse que la théorie sui generis de l'UE est une théorie « négative » et « antihistorique ». De telles limites explicatives reposent premièrement sur une tautologie conceptuelle de base (Hay, 1966, 37) : l'UE est… . ce qu'elle est ; et elle n'est pas… . ce qu'elle n'est pas ! Deuxièmement, la théorie sui generis ne considère l'UE qu'en termes négatifs – l'UE ne serait donc ni une organisation internationale ni un État fédéral – pérennisant ainsi les fondements conceptuels de la tradition westphalienne. Quel autre type d'approche permettrait de penser de façon plus pertinente l'UE ? Cette contribution cherchera alors à expliquer dans quelle mesure le cadre fédéraliste constitue une grille de lecture pertinente afin d'interroger la nature de l'UE.

AbstractThe Union's constitutional regime for development policy has traditionally progressed alongside two parallel tracks. In addition to a general regime for all developing countries, there exists a special regime for African, Caribbean and Pacific Countries (ACP countries). The Union's general development policy originated as a flanking policy within the Common Commercial Policy. This trade-centricity was only relativised by the insertion of an express development aid competence in 1992. The Union's development cooperation competence can today be found in Article 209 of the Treaty on the Functioning of the European Union (TFEU) and allows the Union to adopt legislative acts or conclude international agreements to reduce poverty within developing countries. By contrast, the Union's special development regime has had a very different constitutional source. It stemmed from the 'colonial' association to the Union (quaits Member States) of certain dependent 'oversees countries and territories' for which the 1957 Treaty of Rome had provided a limited development competence. Once these countries gained independence in the 1960s, however, the Union had to transfer this special regime to its contractual association competence under Article 217 TFEU. The association regime for ACP countries has itself undergone a number of significant changes with the transition from the Lomé Convention(s) to the Cotonou Agreement.

AbstractIn parallel with American constitutional thought, there exists a doctrine of incorporation in the European legal order. European fundamental rights will thus not exclusively limit the European institutions. They may—in certain situations—equally apply to the public authorities of the Member States. This chapter looks at the incorporation doctrine across the three sources of European fundamental rights. With three distinct sources of fundamental rights, the constitutional principles governing the European incorporation doctrine are unsurprisingly more complex than the American incorporation doctrine. What are the similarities and dissimilarities between the European and the American incorporation doctrine? The Union presently favours selective over total incorporation. In this respect, it emulates the American constitutional order. Yet the European doctrine nonetheless differs strikingly from the classic American doctrine. For unlike the latter, the European legal order has not made incorporation dependent on the type of fundamental right at issue. The European doctrine has, by contrast, made the incorporation of Union fundamental rights into national legal orders dependent on the type of Member State action.

Is the European Union a legislative giant on clay feet? Is it true that the Union has, with some specific exceptions, no original competence to implement European law? This article analyses the structure of the Union's "executive federalism" in three steps. After a comparative constitutional section on the centralized (American) and decentralized (German) enforcement systems of federal norms, the constitutional foundations of executive power in the European Union are explored. Will Article 291 TFEU provide a reformed textual base for the (new) Union's executive powers? A third section then examines existing constitutional limits to the national (decentralized) and European (centralized) enforcement of European law. Beginning with the decentralized implementation mechanism, a first part of this section looks at the substantive, procedural and morphological limits on the national implementation of Union law. A second part of that section changes perspective as it investigates the constitutional limits on the executive powers of the Union in the form of, for example, the principle of subsidiarity. An excursus briefly analyses the phenomenon of "mixed administration" through a federal lens. And a conclusion finally argues that the Lisbon Treaty will remedy, to some extent, the lack of clear constitutional foundation of Union executive power.

The emergence of the United States of America in the eighteenth-century triggered a semantic revolution in the federal principle. Federalism became identified with a mixed structure between international and national organisation. However, when this American tradition crossed the Atlantic in the nineteenth century, Europe's obsession with indivisible sovereignty pressed the novel idea into a national format. This article analyses the European Community and European Union in light of the American and European federal tradition. It explores the analytical potential of American federal thought in examining the European Union along three dimensions: a foundational, an institutional and a functional dimension. The question of Kompetenz-Kompetenz arises. This inductive approach is contrasted with the deductive approach of European thought. Europe's "statist" tradition insists on the indivisibility of sovereignty. This leads to three constitutional denials: the European Union is said to have no constitution, nor a people (demos), nor a constitutionalism. The very existence of the European Union, often labelled sui generis, has challenged this tradition and, today, European federal thought has gradually come to acknowledge the idea of federalism beyond the State.

The European Community (EC) was established in 1957 on the basis of an international treaty. The Treaty of Rome formed part of international law, though the Court of Justice was soon eager to emphasise that the 'Community constitutes anew legal orderof international law', and that:By contrast with ordinary international treaties, the E … C Treaty has created its own legal system which, on the entry into force, became an integral part of the legal systems of the Member States and which their Courts are bound to apply.