15 Colum. J. Eur. L. 349 (2009)

Ingolf Pernice. Professor Dr. Dr. h.c., Chair for Public, International, and European Law of the Humboldt-University of Berlin, managing director of the Walter Hallstein Institute for European Constitutional Law (WHI) of the Humboldt-University of Berlin, senior visiting fellow at the Program on Law and Public Affairs (LAPA) and visiting professor at Princeton University. This is a more elaborate version of a lecture given at Columbia Law School, New York, on October 1, 2008.

For years, the European Union has struggled with its structural and constitutional self-determination, searching for a sustainable balance between confederal and federal options, between intergovernmentalism and supranationalism. This Article understands the Treaty of Lisbon as one step in a long and complex process of constitutionalization in Europe, comprised of both the evolving European level and the national level of constitutional law. It comments on what is sometimes regarded as the failures in the process of constitution-making, and on the improvements achieved by the reform under the Treaty of Lisbon, both in light of the concept of multilevel constitutionalism. It explains what multilevel constitutionalism means as a theoretical approach to conceptualize the constitution of the European system as an interactive process of establishing, dividing, organizing, and limiting powers, involving national constitutions and the supranational constitutional framework, considered as two interdependent components of a legal system governed by constitutional pluralism instead of hierarchies. The ongoing process of trial and error in the continued reform of the Union where constitutional initiatives regularly lead to increasingly extensive debates with modest contractual results, with the entry into force of the Treaty of Lisbon yet being uncertain, is taken as an example for explaining multilevel constitutionalism in action: The Article seeks to show that both the process showing increased public participation and the results achieved in Lisbon are characteristic of the consolidation of a multilevel constitutional structure of a new kind, based upon functioning democratic Member States, complementary to them, and binding them together in a supranational unit without itself being a state or aiming at statehood.