I have no crystal ball with which to assess or predict the long-term impact of COVID on our democracies; long experience has taught me to avoid punditry – I always get it wrong. But the current circumstance has been helpful in highlighting and accentuating longstanding problems of democracy in and of Europe (Member States and the EU itself) which predate the pandemic and are likely to outlive it. And though the focus of this chapter is on Europe, the underlying issues are, I believe, relevant far more widely.

I recall it being said of a legendary former Director General of the Legal Service of the Commission of the European Union that it was as if the Commission had an extra Member. What, then, is one to say of the legendary former Director General of the Legal Service of the Council – the author of this study? That during his tenure it was as if the Council had an extra Member State? If power and influence were the measure, I would have no problem with such a statement as long as it was not a Malta or an Estonia that one had in mind, but one of the ‘biggies’: a France or a Germany or, perhaps, a United Kingdom. It is difficult to overstate the mark of Jean-Claude Piris on the fortunes of Europe. Cast your mind to any major development, challenge or crisis in recent Union history – whether the Charter of Fundamental Rights or the deliciously bureaucratically named Treaty on the Functioning of the European Union, and the large fingerprints of Jean-Claude Piris will be detected. Never at the forefront, but ever present. It is not only in Praxis that Piris has left his mark. Peruse the pages of the European literature and his writing stands out – it was quite laughable when he tried to hide behind a pseudonym: Justus Lipsius. The consummate political-legal fixer has not only a distinct style, direct with a touch of irony, but is refreshingly politically incorrect, compared with the typically smooth, Barbie-style spin-doctors of the European bureaucracy.

That Europe is in crisis – the travails of the euro actually mask how deep and structural the crisis runs – is a common place. Lisbon?, the Constitutional-Mountain-turned-into-Molehill-except-the-Mountain-was-a-Molehill-to-begin-with, is more the problem than a solution. If you wish to read one of the most incisive analyses of the current circumstance of Europe (grim), you will find it here. If you wish to read an equally incisive analysis of the various institutional options (grimmer), you will find that here too. But Piris is no Cassandra. You will also find one the most incisive analyses of the indispensability of the European construct for the future welfare of European citizens and their Member States. What, then, to do with the willing patient betrayed by the ageing organs? Where is the Viagra going to come from?

Joseph H. H. Weiler and Bruno de Witte

JW: I would like to query the revision clause analysis which seems the apex of Section 1.3 of your chapter dealing with the relevance of the practice of the Member States in resolving the issue – international, yes or no.

At its heart the argument seems to flow as follows. In general international treaty law, revision is flexible and subject to a normal default rule of amendment by unanimity of the contracting parties. In concluding a treaty, parties may, however, specify a different revision procedure which, as is often the case, may provide for flexibility such as amendment by majority rather than unanimity. In the EU, by contrast, the revision provisions agreed by the parties are rigidified: not only is unanimity required, but further restrictions apply, such as the involvement of the EU institutions and ratification by each state according to its own constitutional requirements. Further, you correctly point out that, whereas under general international treaty law, the High Contracting Parties of a treaty can effectively amend it by a new treaty, riding roughshod not only over the provisions for conclusion under which the original treaty came into force, but even riding roughshod over the revision provisions in the original treaty. States, as you point out, are Masters of the Treaties they make, both as to form and as to substance. By contrast, you point out, under the EU, the Member States do not have this freedom of form. They must follow the procedural rules in the EU treaties in order to revise them. At least procedurally, they seem to lose something of their ‘mastery of the treaty’.

Global Constitutionalism and Constitutional Pluralism:

Like an infectious virus which simply develops new resistant strains when we think we finally have it under control, so it is with <Constitutional> <kɒnstɪ’tuʃənl>. The most recent academic pandemic, particularly virulent (cerebral indigestion being one of its milder symptoms) is the result of a genetic fusion of the ubiquitous Global Constitutionalism and Constitutional Pluralism strains which dominated the 1990s and 2010s. Global Constitutionalism is already, at least in the eyes of some, a discrete academic discipline, with a soon to be published Journal of Global Constitutionalism, with various masters’ degrees, treatises and the other usual accoutrements. Constitutional Pluralism is today the only party membership card which will guarantee a seat at the high tables of the public law professoriate. From my vantage point of editor-in-chief of the deliciously and ambiguously entitled International Journal of Constitutional Law (I∙CON) I have begun to wonder: Is there anyone out there who is not a constitutional pluralist? Who does not believe that the global space is in some form constitutionalized?

I do not recall ever using constitutional pluralism in my own writing, but like M. Jourdain, I was instructed that I too, apparently, converse in the prose of constitutional pluralism, which, paradoxically makes me (and everyone else) a comfortable Bourgeois gentilhomme. That, of course, is the price of success of a concept/fad: what begins as heterodoxy becomes prevailing orthodoxy, in this case when Constitutional Pluralism (the maverick constitutional pluralism strain) suddenly emerges as hopelessly politically correct.