Constitutionalizing Governing and Governance in Europe

Abstract

The EU is a structure positioned 'in-between' hierarchically organized nation-state governing structures and heterarchically structured global governance structures. Thus, the EU is a hybrid which relies partly on governing and partly on governance. This two-dimensionality is a central reason why the question of the constitutional character of the EU remains fundamentally unresolved. Thus, it is proposed that the EU should aim for developing a constitutional form aimed at alleviating the tensions inherent in the European construction through a conflict of laws approach. In order to respect the hybridity of the Union, such an approach, however, will have to be based on a three-dimensional conflict of laws concept. It would have to take account of horizontal conflicts between territorial units, vertical conflicts between the EU and its member states, and also horizontal conflicts between the functionally differentiated structures of the wider society.