which, indeed, is really a claim raised in the treaties and treaty amendments, but is, in reality in need of clarification and hard to meet. Why? The process of European integration has been seen as forming and formatting a sovereignty association of a special nature (Herrschafisverband eigener Pragung)as M. Rainer Lepsius puts it-a happy formulatio since, by simply using the Weberian category of Herrschaft(domination/sovereignty ),it designates a continuing key problem in the European project. This Herrschafisverband is dependent on recognition by its subjects-and this de facto dependency has continued to become visible and perceptible. 4 Social scientists ought not, and we lawyers may not, satisfy ourselves with an empirical concept of legitimacy: Are Europes sovereignty claims justifiable as to deserve our recognition, too? This is a question which we have to ask ourselves, irrespective of whether we bring in Jurgen Habermas for the purpose or not law"from the outset, namely, in the very stage of the establishment of the EEC. It is y o And, in fact, legal science did ask the question of the basis of the valid ity of Europe impression that this happened more fundamentally in Germany than elsewhere-not necessarily for good reasons, but certainly for compelling ones: the Federal Repu still a very young democracy at that time and could not be expected to call this achievement into question. At the same time, it was dependent on being included in Europe. The Basic Law of 1949, however, had anticipated such dilemmas and provided a siby llic and prudent response it had constitutionalised both principles, the inviolability of democracy(in Article 79 III)and its openness to integration(in Article 24). Is this a paradox documenting the intrinsic contradictoriness of all law? It is, at any rate, a challenge around which all European law to date must turn and which keeps its interpreters so restless. I wish to distinguish between three sets of attempts to find fixed points here and give the European process a firm normative I 1 Market rational ity as a principle of (constitutional) law? The first, ordo-liberalism'(a German version of neo- liberalism), was ready even before the EEC existed. It had been developed in the turmoil of the Weimar Republic, and posited that a the opportunistic, discretionary encroachments of politics o uted,)so as to be protected from This trad ition survived the Third 3 For this German term, see M. Rainer Lepsius, Die Europaische Union als Herrschaftsverband eigener Pragung(The European Union as a Sovereignty Association of a Special Nature), in: Ch. Joerges, Y. Meny and J HH. Weiler(eds ) What Kind of Constitution for What Kind of polity? Responses to Joschka Fischer Florence: The robert Schuman Centre for Advanced Studies at the European University Institute/Cambridge, Ma:HarvardLawSchool2000,203ff.(213ff.);<http://www.jeanmonnetprogram.org/papers/00/svmp.htmi> This has now been given thorough treatment by the explanatory disciplines, most recently in KJ. Alter, Establishing the Supremacy of European Law: The Making of an International Rule ofLaw in Europe Oxford/New York: Oxford University Press 2001; A. Wiener, They Just Dont Understand! Finality and Compliance: Opposing Rationales in the European Constitutional Debate, MS Belfast 2002 For a very pointed recent restatement, see J. Habermas, Remarks on Legitimation through Human Rights, in: id, The Postnational Constellation, Cambridge: Polity 2001, 113 ff, 113. The whole issue is systematically discussed in Ch. Jetzlsperger, Legitimacy through Jurisprudence? The Impact of the European Court of Justice on the Legit macy of the European Union, EUl Working Paper Law 12/2003 Cf. on this tradition D.J. Gerber, Constitutionalising the Economy: German Neo-Liberalism Competition Law and the New Europe, American Journalof Comparative Law 42( 1994), 25 ff, w. Sauter, Competition Law and Industrial Policyin the EU, Oxford: Clarendon Press 1997, 26 ff.; oddly(and significantly ) this tradition hardly appears in political science and sociology. A remarkable exception is Ph Manow, Modell Deutschland asan Interdenom inational Comprom ise: Program for the Study of Germany andwhich, indeed, is really a claim raised in the treaties and treaty amendments, but is, in reality, in need of clarification and hard to meet. Why? The process of European integration has been seen as forming and formatting a ‘sovereignty association of a special nature’ (Herrschaftsverband eigener Prägung) as M. Rainer Lepsius3 puts it - a happy formulation, since, by simply using the Weberian category of Herrschaft (domination/sovereignty), it designates a continuing key problem in the European project. This Herrschaftsverband is dependent on recognition by its subjects - and this de facto dependency has continued to become visible and perceptible.4 Social scientists ought not, and we lawyers may not, satisfy ourselves with an empirical concept of legitimacy: Are Europe’s sovereignty claims so justifiable as to deserve our recognition, too? This is a question which we have to ask ourselves, irrespective of whether we bring in Jürgen Habermas5 for the purpose or not. And, in fact, legal science did ask the question of the basis of the validity of European law ‘from the outset’, namely, in the very stage of the establishment of the EEC. It is my impression that this happened more fundamentally in Germany than elsewhere - not necessarily for good reasons, but certainly for compelling ones: the Federal Republic was still a very young democracy at that time and could not be expected to call this achievement into question. At the same time, it was dependent on being included in Europe. The Basic Law of 1949, however, had anticipated such dilemmas and provided a sibyllic and prudent response: it had constitutionalised both principles, the inviolability of democracy (in Article 79 III) and its openness to integration (in Article 24). Is this a paradox documenting the intrinsic contradictoriness of all law? It is, at any rate, a challenge around which all European law to date must turn and which keeps its interpreters so restless. I wish to distinguish between three sets of attempts to find fixed points here and give the European process a firm normative basis. I.1 Market rationality as a principle of (constitutional) law? The first, ‘ordo-liberalism’ (a German version of neo-liberalism), was ready even before the EEC existed. It had been developed in the turmoil of the Weimar Republic, and posited that a free order for economic life must be legally shaped (‘constituted’) so as to be protected from the opportunistic, discretionary encroachments of politics.6 This tradition survived the Third 3 For this German term, see M. Rainer Lepsius, Die Europäische Union als Herrschaftsverband eigener Prägung (The European Union as a Sovereignty Association of a Special Nature), in: Ch. Joerges, Y. Mény and J.H.H. Weiler (eds.), What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer, Florence: The Robert Schuman Centre for Advanced Studies at the European University Institute/Cambridge, MA: Harvard Law School 2000, 203 ff. (213 ff.); <http://www.jeanmonnetprogram.org/papers/00/symp.html>. 4 This has now been given thorough treatment by the explanatory disciplines, most recently in K.J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule o f Law in Europe, Oxford/New York: Oxford University Press 2001; A. Wiener, They Just Don’t Understand! Finality and Compliance: Opposing Rationales in the European Constitutional Debate, MS Belfast 2002. 5 For a very pointed recent restatement, see J. Habermas, Remarks on Legitimation through Human Rights, in: id., The Postnational Constellation, Cambridge: Polity 2001, 113 ff., 113. The whole issue is systematically discussed in Ch. Jetzlsperger, Legitimacy through Jurisprudence? The Impact of the European Court of Justice on the Legitimacy of the European Union, EUI Working Paper Law 12/2003. 6 Cf. on this tradition D.J. Gerber, Constitutionalising the Economy: German Neo-Liberalism, Competition Law and the ‘New’ Europe, American Journal of Comparative Law 42 (1994), 25 ff.; W. Sauter, Competition Law and Industrial Policy in the EU, Oxford: Clarendon Press 1997, 26 ff.; oddly (and significantly), this tradition hardly appears in political science and sociology. A remarkable exception is Ph. Manow, Modell Deutschland as an Interdenominational Compromise: Program for the Study of Germany and