Emergence of a Democratic European Society

What is the ever closer union of the peoples of Europe about, which the Rome Treaty posited in 1957? After 70 years of European integration, Article 2 TEU provides an answer: the ever closer union is first and foremost about a European society characterized by the 12 principles of this provision. Thus, European law is the law of European society committed to democratic constitutionalism. Articles 1(2), 3(1) and 13(1) TEU require European institutions to deepen this commitment.

This idea was first elaborated in von Bogdandy's Strukturwandel des öffentlichen Rechts. Entstehung und Demokratisierung der europäischen Gesellschaft, Suhrkamp 2022 (published in 2024 as The Emergence of European Society through Public Law: A Hegelian and Anti-Schmittian Approach by Oxford University Press). The book reconstructs 70 years of EU law, but also the unfolding of the European Convention on Human Rights and the Europeanisation of domestic public law as the emergence and democratisation of European society. It also points out the current challenges to that process and how they might be addressed.

The concept of society, introduced by the Lisbon Treaty in 2009, allows a theoretical breakthrough because it provides EU law with a ‘collective singular’ at the level of state, nation or people. Public law thinking in the Western tradition depends on such concepts. European society also allows a richer understanding of European conflicts: they no longer appear only as conflicts between Member States, but also as conflicts within one society. Conflicts over the rule of law, for example, are no longer to be understood as just between liberal Western Member States and illiberal Eastern ones, but within a single society. Another change of perspective concerns third-country nationals: third-country nationals residing in the Union are part of European society. Overall, this society-centred approach provides a new path for the reconstruction and interpretation of European law.

The book has been severely criticized (Florian Meinel, Soziopolis). The overall reaction, however, was positive, starting with Sabino Cassese’s review in the Italian daily Il Foglio (see reviews, https://www.mpil.de/files/pdf6/bibliographie-armin-von-bogdandy.pdf). It was presented at the Italian Constitutional Court (presided by Giuliano Amato), at the Conference of German Landesminister of European Affairs, and at dedicated seminars in Berlin, Bucharest, Campobasso, Catanzaro, Darmstadt, Heidelberg, Frankfurt, Milan, Paris, Rome, Stockholm, Trento, and Zürich. A full course at Tel Aviv University compared the emergence and democratization of European society with the emergence and democratization of Israeli society.

As part of this project, various dissertations emerged and were completed:

Giacomo Rugge “Trilogues: The Democratic Secret of European Legislation” (to be published by Cambridge University Press); Rugge has since joined the Legal Service of the Council of the European Union.

Theodor Shulman “The Challenge of Stability. Niklas Luhmann's Early Political Sociology and Constitutional Adjudication in the United States and Germany”, published in the Institute’s Schwarze Reihe; he joined Redeker, one of Germany’s foremost law firms on public and European law.

Catherina Ziebritzki “The EU’s Responsibility in the Asylum Administration. Administrative Integration, Judicial Protection and the Case of EU Hotspots” (defended in 2024); she moved on to be a Referendar in Berlin.

Two Habilitationsprojekte are situated in this context: Matthias Goldmann’s research on “Stability through Deliberation: The Financial Sector, Public Law and Democracy” and Michael Ioannidis’ research on “Law and Policy of EU Conditionality”.