Giorgos Gerapetritis - The New Economic Constitutionalism in Europe

In the first part of his presentation, Professor Gerapetritis pinpointed the ‘swinging interdependence between the State and supranational entities’ as one of the main features of new economic constitutionalism in Europe. He noted that there is a ‘dominance of economic provisions over provisions on state powers and human rights’. He gave a clear and thoughtful account of the main problems facing the Economic and Monetary Union (EMU), viz. the much bemoaned ‘false financial mechanics’ of the EMU, the EU’s ‘institutional asymmetry’ (which is primarily manifested, in Professor Gerapetritis’ view, in its ‘lack of legitimacy’ and the lack of involvement of the regions and the people), and ‘obsession on financialism’.

In the second part of his speech, Professor Gerapetritis focused on ‘economic drafting of the constitution’ and ‘economic reading of the constitution’. The latter phrase connotes an ‘economic approach to the constitution through a systematic interpretation of state powers and civil rights in the light of the economic provisions’. This aspect is often missing from the debate on the Euro crisis. As pithily expressed by Professor Gerapetritis, ‘the idea is that tough times require weak review’. Professor Gerapetritis argued that there is a ‘shift of power equilibrium between the states and supranational formations’, as well as a ‘shift of power equilibrium within the state authorities’, which is marked by ‘executive empowerment and parliamentary default’. He further argued that judges have largely become political actors in an effort to safeguard the economic constitution and that there is a ‘mutation of the political agenda’.

In the last part of his presentation, Professor Gerapetritis outlined his vision for remedying the flaws of democracy, politics and law-making in the EU. First, he placed considerable emphasis on ‘multi-level representation’, with the President and members of the European Commission being directly elected by the people. He further noted that this would require ‘European party politics’, viz. genuinely European elections. Second, he suggested that ‘multi-level deliberativism (inclusiveness, endorsement, cost-benefit analysis, evidence, interplay and fair play and transparency)' be strengthened, in order to ‘supplement legitimacy and accountability’. Third, he discussed ‘polycentric governance’, the emphasis being on subsidiarity controls and the creation of a second chamber to represent the regions of the EU. Fourth, he examined ‘intergenerational sustainability and (global) solidarity’, which suggests ‘a human rights approach trespassing the contemporary individual and groups with a view to future subjects of rights’ as well as a ‘broadening of the idea of solidarity to a global level so as to supplement the rule of law’. Professor Gerapetritis ended on a positive note, suggesting that ‘the financial crisis might turn into an opportunity’ to upgrade the existing constitutional tools and to supplement them with new ones.

Mr Markakis response focussed on two points. First, he argued that a directly elected Commission would be more politicised and powerful than is currently the case, and this might cause friction between the EU institutions and the Member States. This tension has already manifested itself, in Mr Markakis’ view, in the backlash from a number of national politicians against Jean-Claude Juncker’s ‘more politicised’ Commission. Second, he noted that most citizens and/or scholars bemoaning the state of democracy in the EU in the aftermath of the Euro crisis in fact deplore the political agenda that has gained ground in the EU in response to the crisis. As such, it might be scant comfort to the ordinary citizen of a crisis-hit country that the austerity measures imposed on her/him have been approved by, say, the European Parliament or a directly elected Commission. In response to Mr Markakis’ comments, Professor Gerapetritis noted that his four policy proposals are closely interrelated and are all integral to a major overhaul of the EU polity.

Professor Gerapetritis article on ‘Europe’s New Deal: A New Version of an Expiring Deal’ in the European Journal of Law and Economics (2014) 38: 91-115 expands on these themes.