Republicanism – a Concept for the Transformation of the EU?
In his lecture, Armin von Bogdandy reflected on the EU's current constitutional development and presented a concept of republicanism that builds on the principles laid down in Article 2 of the Treaty on European Union (TEU) and forms a coherent approach, not least for the transformation of the European fiscal and social state.
Prof. Dr. Dr. h.c. Armin von Bogdandy, Director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and Professor of Public Law at the University of Frankfurt am Main, gave the last lecture of the first year of the lecture series "The Future of the Fiscal and the Social State in the European Union" on December 11. Over 50 guests came to hear the award-winning academic, whose work has set standards in international law and European law.
Bogdandy opened his lecture "The Fiscal and Social State under the CJEU's New Principled Constitutionalism" with a confession: he was a Hegelian and as such a friend of concepts. Tonight, he wanted to present such a concept, namely a viable contemporary concept of republicanism. Before that, however, Bogdandy took a look at the structural reforms of the EU. For a decade now, the European Court of Justice (CJEU) has been transferring its long-standing functional constitutionalism to a new principle-based level that emphasises the constitutional core of the Union. According to Bogdandy, this principle-based constitutionalism marks the beginning of a new era.
The impact of this "transformation" on the interpretation of EU law is shown by the decision of the CJEU of February 16, 2022 (C-157/21). Poland and Hungary had challenged Regulation (EU, Euratom) 2020/2092, which introduced a general conditionality mechanism to protect the budget of the EU in the case of breaches of the principles of the rule of law in the Member States. The CJEU dismissed the complaints and confirmed the regulation's legality. The mechanism was necessary to safeguard the EU budget, and the regulation sufficiently precise and proportionate to ensure that the principles of the rule of law are respected. For Bogdandy, this decision was a "brilliant moment for the European Constitution" as it directly influenced EU law.
Solidarity as a key principle of the new constitutionalism
Bogdandy introduced solidarity, in its meaning of fraternité, as the "key" to this new principle-based constitutionalism. Unlike in the USA, it aims to promote a more coherent and democratic European society in the EU. This should also impact the interpretation of EU tax and social law. But which concept of state theory guides this reform from a functional to a value-based interpretation?
The idea of a European Republic
Bogdandy's thesis: republicanism. Indeed, this direction of political philosophy shines through in many of the images and quotations that Bogdandy presented to the audience: There is the 200-year-old portrait of a blonde woman – even then dressed in the colours of the French Revolution and an expression of a transnational constitutional tradition. Today, Article 2 TEU refers to "one society", thus implying a genuinely European society. Against this background, republicanism forms the basis for a "useful concept that is rooted in tradition and provides answers to the problems of our time", Bogdandy states. He illustrates the deep interweaving of European culture with republican ideas with further historical images, legal acts and documents. Following on from that, Article 2 TEU can be read as a "republican manifesto", says Bogdandy. However, for a future-proof concept of republicanism, which is based on the solidarity of the Member States, their policies must be compatible with the principles of Article 2 TEU.
In his lecture, Bogdandy not only traced a renaissance of republicanism in the current constitutional development, but also showed possible translations for political practice, towards a robust set of instruments on the further path to a principle-based, value-centred constitutionalism of the CJEU.
