European dys-integration, popular disillusionment and Brexit: could substantive constitutionalisation help win back minds and hearts?

The multiple ‘crises’ that have engulfed the EU during the last decade, culminating in the Brexit saga, have not only challenged the traditional narrative of perpetual ‘further integration’ and forward movement of the European project, but, more importantly, might have revealed systemic flaws of its overall structure and normative basis. At a constitutional level, the evolution of the EU can best be described as one of ‘dys-integration’, rooted in the traditionally established perception of its free market foundations. To a certain extent, this suggested ‘dys-integration’, as manifested in the interpretative choices, policy and conduct of EU institutions, including the CJEU, was one of the factors that exasperated the perception of the EU as an entity disconnected from its constituent peoples, lacking in democratic legitimacy and accountability. In turn, this sentiment fuelled nationalistic and populist narratives, but also provided for valid critique against the EU. Combined, these two trends could be suggested to hold one of the explanations for the rise of Eurosceptic forces across the EU, the emblematic result of which in the UK has been the Brexit referendum decision and process that ensued.
The present paper attempts to examine whether embracing a more consistent interpretation and application of the current EU constitutional framework and its normative foundations could help reverse this perception. It focuses on the CJEU, perceived by the Eurosceptic narrative as an activist Court, jeopardising national constitutional autonomy and biased in favour of freedoms, rather narrowly construed. It is suggested that, contrary to the Court’s apparent understanding of the EU constitution, its normative basis post-Lisbon is one of balance, rooted in the Union’s fundamental liberal, socioeconomic and democratic values and objectives rather than just its economic character and consequent fundamental freedoms. ‘Substantive constitutionalisation’ refers to an interpretative approach that would require the Court to review all measures consistently against this rearranged balanced normative framework, through which economic freedoms are also to be construed. This balanced understanding of EU primary law, which defines the limits of institutional action, should also inform the conduct of all EU institutions. The paper considers whether, even without immediate treaty reform, reshaping our understanding of the current EU constitutional framework could hold the potential for bridging some of the disconnect between the EU and popular public perception of its nature and role, and, thus, at allow the Union some breathing space to reassess its future.