In this essay, we challenge the characterisation of European law as a constitutional order from two related standpoints, namely, the ambiguity of what is meant when characterising European law as constitutional, and the lack of a well-argued narrative explaining how European law became constitutional and what type of constitutionalism it has developed. We start by clarifying the concept and conceptions of constitution, emphasising the centrality of the structural and normative conceptions of constitution. This preliminary conceptual work facilitates the task of elucidating what is exactly being argued when it is claimed that European law is constitutional, and what implications are consequently justified. We then note that while the process of constitutionalisation plays a key role in structuring European law as a discipline, normative reasons underlying such characterisation remain, if anything, more assumed than explicit and fully demonstrated. This leads us to conclude by arguing that may be preferable not to imagine contemporary European law in constitutional terms. At the same time, however, we note that the power effectively held by the European Union reaches so many corners of national legal and socio-economic structures as to render insufficient to merely reject any claim to its constitutionality. The predicament of European Union law is that of a legal order that de facto discharges functional tasks proper of constitutional orders while lacking the requisite democratic and social credentials.
You can download the working paper at the SSRN.