MINISTERO DELL'UNIVERSIT└ E DELLA RICERCA SCIENTIFICA E TE CNOLOGICA
DIPARTIMENTO AFFARI ECONOMICI
PROGRAMMI DI RICERCA SCIENTIFICA DI RILEVANTE INTERESSE NAZIO NALE
RICHIESTA DI COFINANZIAMENTO

(DM n. 10 del 13 gennaio 2000)
PROGETTO DI UNA UNIT└ DI RICERCA - MODELLO B
Anno 2000 - prot. MM12562228_006

 

Parte: I

1.1 Programma di Ricerca di tipo: interuniversitario

Area Scientifico Disciplinare: Scienze giuridiche


1.2 Durata del Programma di Ricerca: 24 mesi


1.3 Titolo del Programma di Ricerca

Testo inglese

The Growth of the Structures and Powers of the European Union as a Process of Constitutionalization


1.4 Coordinatore Scientifico del Programma di Ricerca

FERRARI

GIUSEPPE FRANCO

 

(cognome)

(nome)

 

UniversitÓ Commerciale "Luigi Bocconi" MILANO

FacoltÓ di ECONOMIA

 

(universitÓ)

(facoltÓ)

 

N11X

Istituto Diritto comparato

 

(settore scient.discipl.)

(Dipartimento/Istituto)

 


 

giuseppe.ferrari@uni-bocconi.it

(E-mail)


 


1.5 Responsabile Scientifico dell'UnitÓ di Ricerca

TONIATTI

ROBERTO

 

(cognome)

(nome)

 


 

Professore ordinario

07/03/1950

TNTRRT50C07L424V

(qualifica)

(data di nascita)

(codice di identificazione personale)


 

UniversitÓ degli Studi di TRENTO

FacoltÓ di GIURISPRUDENZA

(universitÓ)

(facoltÓ)

N11X

Dipartimento di SCIENZE GIURIDICHE

(settore scient.discipl.)

(Dipartimento/Istituto)


 

0461/881806

0461/881865

toniatti@jus.unitn.it

(prefisso e telefono)

(numero fax)

(E-mail)


 


1.7 Parole chiave

Testo inglese
EUROPEAN UNION ; CONSTITUTION ; FORM OF STATE ; POLITICAL ORDER ; PLURALIST ORDER ; SOCIAL ORDER


Parte: II

2.1 Titolo specifico del programma svolto dall'UnitÓ di Ricerca

Testo inglese

The Process of Constitutionalization of the European Union and the theory of "forms of State".


2.2 Base di partenza scientifica nazionale o internazionale

Testo inglese

The theory on "forms of State" is a scientific contribution to the classification of different national statehood realities elaborated mainly by Italian comparative constitutional law scholarship: in spite of a recent radical and authoritative criticism (see G.U. Rescigno, entry Forme di Stato e di governo, in Enciclopedia Giuridica Treccani), such theory offers a clarification on the constitutional normative assertion of a linkage between the fundamental goals of an organized social community (as derived from an ideological set given by the political, social, economic and cultural system) and the governmental institutional pattern which is meant to and built in order to implement and ensure those same goals. Such doctrine, therefore, is not limited to a description of the form of State but includes, focuses and gives value to the normative effects of it, emphasizing the "must be" and the legal and normative meaning of an ideological project: a liberal State is a State which must be liberal, a social State is a State which must be social, and so on (such formulas are quite common at least in the legal discourse of continental Europe). The analysis of the normative aspects of the fundamental goals pursued by various historical types of State does not hinder other paths of investigationon forms of State: in fact, a different scholarship considers structural elements (rather than teleological ones) to be the characterizing factor of a form of State. Both perspectives offer a well founded research hypothesis, which will lead to good results as long as the methodology of legal comparison is correctly applied: in fact, criteria of distribution of public power among a plurality of governmental institutions bearing the charge of sovereignty (theory of separation of powers and patterns of executive-legislative relations) or according to a territorial pattern (federal, regional, supranational models) contribute as well to ensuring the linkage between the fundamental goals that a polity adopts as a normative rule and the organizational modelling of its institutional system. Such issues show all their relevance if, e.g., one goes deeper into their impact on the identification of limits (although implied) to constitutional change or else, in a thoroughly different context, in the legal definition of "antisystem opposition". Different milieus of constitutional scholarship have contributed with the development of concepts quite close to the theory on forms of State, such as "fundamental constitutional order" (which implies a normative aspect), or such as "political order", or "social order" or "pluralist order" (which rather emphasize a descriptive approach). The problem of theoretical classifications of forms of State is linked to the historical evolution of the very notion of the State on the one hand and on comparative empirical observation of different statehood realities on the other hand. What seems to be missing is an attempt at elaborating the same notions to institutional realities or to organizational models which - while having the potentialities to be a polity - are directed to pursuing the same fundamental goals just as States do and yet - as is the case of the European Union - lack the condition of statehood. On this topic, quite relevant is the opinion given by the European Court of Justice (March 1996) on the (in)competency of the Community institutions to formally sign the European Convention for the protection of human rights and fundamental freedoms, maintaining that such signature would imply a revision of the Treaties which, as they are, do not confer in general terms the power to set rules on human rights; not less relevant is the identification of the conditions to which the Union's enlargement to Eastern European Countries is subordinated as well as the acknowledgement of substantive limits to the power of amending the Treaties. The preliminary foundations for this research project, along with the scholarly specific support, are therefore (a) an evaluation of the linkage between the normative aspect of the ideological must be of a State and the legal and constitutional classification of it (that is, in other words, the comparative analysis of the theory on forms of State applied to the member States of the European Union); and (b) the application of the scientific results on the European Union itself, both by virtue of its own constitutive rules - considered as constitutional rules of the Union - and as a consequence of the effects that "constitutional principles common to the member States (article 6 of the Treaty on the European Union) produce on the Union and on its "form of State". The research project aims at exploring comparatively the scientific holding of the theory on forms of State (in terms of its appropriateness and effectiveness) as well as at applying such theory (as critically revisited) to the European Union. A relevant corollary would be an evaluation not of the nonexisting statehood of the European Union but of its possible "type of statehood", jointly with a critical evaluation of the changing nature of statehood itself in the present historical period.


2.2.a Riferimenti bibliografici

AA. VV. L'Unione europea: istituzioni, ordinamento e politiche, Bologna, 1998
AA. VV., Constitutional Law and Economics of the European Union, Lyme, N.H., 1997
AA. VV., Democracy and the European Union, Berlino, 1998
AA. VV., Governance in the European Union, London, 1998
AA. VV., Policy-Making in the European Union, Oxford, 1998
AA. VV., The Europeean Union: How Democratic Is It?, London, 1996
BANCHOFF T., SMITH M.P. Legitimacy and the European Union: the Contested Policy, London - New York, 1999
CUOCOLO F., Forme di Stato e di governo, in Digesto delle discipline pubblicistiche, vol. VI, Torino 1994, 594
KELSEN H., Teoria generale del diritto e dello Stato, trad. it., Milano 1952
LIZZA G., (a cura di), Geografia della nuova Europa, Torino, 1999
MORTATI C, Le forme di governo (Lezioni), Padova, 1973
NEWMAN M., Democracy, sovereignity and the European Union, London, 1996
O'KEEFFE D, TWOMEY P. (ed.), Legal Issues of the Amsterdam Treaty, Oxford, 1999
PIZZORUSSO A., Sistemi giuridici comparati, Milano, 1998
RESCIGNO G.U., Forme di stato e forme di governo, in Enciclopedia giuridica Treccani, vol XIV, Roma, 1989
SHAW J., MORE G., New Legal Dynamics of European Union, Oxford, 1995
TILLY C., La formazione degli stati nazionali nell'Europa occidentale, Bologna 1991
WEILER J.H.H., The Constitution of Europe, Cambridge, 1999


2.3 Descrizione del programma e dei compiti dell'UnitÓ di Ricerca

Testo inglese

This research project aims at conducting a twofold investigation: first, by comparing the constitutional legal orders of member States of the European Union, to offer a deeper understanding of the normative qualification of the constitutive, constituent and constitutional goals of a State and its organizational forms; secondly, a deeper understanding of the European Union resulting from an application to it of the theory on forms of State: the practice set in motion and gradually developed under the early Treaties and later formalised by the Treaties on the European Union (Maastricht and Amsterdam) has strengthened (both in quantity and quality) the need to identify and elaborate scientifically the fundamental goals of the European Union, has made more acute the problem of exploring the linkage between the procedural and institutional system (e.g., the so called democratic gap) with regard to those same goals, has contributed to a theory on the existence of possible implied limits on the amending power of the constitutional law of the European Union (as established by the Treaties). In other words, the aims of the research project are to identify and describe the political regime of the European Union, to explore systematically its contents - according to the whole set of fundamental goals of the Union (economic and monetary ones as well those stemming out from its social and cultural policies) and to investigate its transformation into a normative order, thus reaching the normative end -while pursuing the process of its constitutionalization - of establishing the "form of State" of the European Union.
Such a research project (that would be even more interesting if one could thoroughly include the issues of European social policies in order to explore the possibility of qualifying the Union as a "social State") is indeed quite wide and complex. It is therefore necessary to limit its scope by giving the priority to single parts, such as those normative elements that may lead to a definition of the form of State of the European Union as "pluralist". The aim may consequently and more narrowly be described as an attempt to explore to what extent the constitutional law of the member States as well as of the European Union itself provides a normative foundation sufficient to identify a pluralist liberal and democratic form of State common to the member States and to the Union. Moreover, the research will attempt at clarifying if such definition of the form of State of the European Union results from its own constitutional law or only as a consequence of constitutional traditions common to the member States. Territorial pluralism pertains to the so called vertical distribution of power. According to the methodology indicated above, the hypothetical inclusion of such pluralism among the constitutive characters of the normative form of State both of member States and of the European Union is a consequence of a correct analysis of positive data of constitutional law as well as of judicial decisions and of scholarship, all as applied to the normative effectiveness of that concept. The evaluation of the scope and normative reach of territorial pluralism within the European legal order according to the same criteria employed with regard to member States will lead to clarifying the legal meaning (if any) of the formula "Europe of Regions" and to understanding whether territorial pluralism may be properly regarded as part of the normative contents of the constitutional law of the European Union. A second meaning of pluralism, although intrinsically linked to the previous one, is cultural pluralism. The same methodological approach will be employed in order to analyse the scope and the normative reach of cultural pluralism within the constitutional systems of member States and of the European Union. With regard to such issues, the hypothesis may well be that there is a discrasy in the meaning of cultural pluralism as a normative constitutional character of member States (or at least of some of them) - as enforced or enforceable in the protection of minorities as to language, religion and (at large) opinions - and of the European Union, where the emphasis may not be on minorities as it may be on the protection of cultural diversities of the peoples of member States. As a consequence of such remarks, the appropriate research hypothesis might concern the diversity in the historical formative process of member States and their respective statehood as distinguished from the "type of statehood" applicable to the European Union and derived from its own fundamental goals, on the one hand, and, on the other hand, the possible diversity as to the normative character that the ideology of cultural pluralism has within the constitutional law of member States and, respectively, of the European Union.
The first part of the research, characterised by the comparative methodology and adopting as a main viewpoint the theory on forms of State, is to analyse, such theory within constitutional law scholarship of the different national legal systems as well the presence, under different guise, of the same theoretical elements. It will be necessary to explore the various approaches that single legal traditions follow while pursuing the same scientific result of explaining the phenomenon of the giving of legal status and force to the State's fundamental goals; and to conduct a detailed research also from the linguistic and semantic point of view of the theory on forms of State within European legal scholarship, in order to find out where and to what extent the theory has been accepted or, more or less consciously, criticised and rejected. It will also be necessary to analyse data of positive law and of judicial decisions of different legal systems in order to find out whether, notwithstanding what their respective legal scholarships affirm, ideological goals as enshrined in constitutional provisions do have legal force. Such a comparative research will allow the comparative researcher to read the foreign legal experience with the magnifying glass of his/her own legal tradition. The comparative analysis of the normative instruments meant to ensure the pursuance of ideological goals written into the constitution and protected by judicial review ought not to be separated from the appreciation of the underlying legal culture. Such approach will allow also to double check the effective meaning of "common constitutional traditions".
The second part of the research will include the application to the European Union of the legal characters of the theory on forms of State as results from the previously conducted comparative investigation. From this point of view, such attempt will consider the European Union both as a self-referring constitutional entity and as the sum of the constitutional traditions of its member States (thus providing a factor of inherent territorial pluralism). Among the various problems to be solved, one is to single out the taxonomic value of territorial and cultural pluralism within the legal order of the European Union, the presence of limits to the amending power of the Treaties and the possible inclusion of the pluralistic principles within such limits, the value and the role of common constitutional traditions as legal rules pertaining to the ideological foundations of the Union itself.
In synthesis, the research project aims at identifying the "form of State" of the European Union, at evaluating the scientific holding of the theory on forms of State on the twofold background of comparative constitutional investigation and of the application of the theory, critically revisited, to the constitutional law of the European Union: within this context, pluralism is to be the methodological paradigm of the research. A further aim of the research is the attempt to give an answer to problems of constitutional engineering. As an example, one may refer to (mainly territorial) pluralism as an ideological element of the process of constitutionalization of the European Union: the assumption of such element may lead to the identification of some legal limits to the construction of a new continental centralism resulting as a consequence of the loss of centrality by its member States. Within the constitutional order of the member States themselves as well as of the European Union, moreover, that very element might help to understand what are the margins of development of the so called multilevel governance.