De Iure and De Facto: The Two Sides of the European Council after Lisbon

This work contributes an innovative vision of the European Council presented in two different but interrelated parts. The first, a de iure analysis of the essential primary law provisions that compose the European Council's competence framework according to the most recent version of the Treaty of Lisbon. The second, a de facto analysis focusing on the breaches to said competence framework by European lea-ders during the five UE crises: financial crisis, migratory crisis, Brexit, COVID and the war in Ukraine. Some of these crises show that the European Council has gone beyond its competence framework and breached EU law, making the rest of the ins-titutions into necessary collaborators. The main conclusions are three. First, the Eu-ropean Council, after the Treaty of Lisbon, has become the main constitutional and constituted << power >> in the EU, holding key competences and becoming the essential institution in moving the integration process forward. Second, after studying the afo-rementioned crises, there is evidence that the European Council has consciously gone beyond the EU law framework, not basing their actions in existing legal frames, but in a clear will to avoid political or legal controls when it considers that a crisis calls for it. The third conclusion allows us to conclude that the rest of institutions, including the CJUE, have tried to justify these actions.

DE IURE AND DE FACTO: THE TWO SIDES OF THE EUROPEAN COUNCIL AFTER LISBON

This work contributes an innovative vision of the European Council presented in two different but interrelated parts. The first, a de iure analysis of the essential primary law provisions that compose the European Council's competence framework according to the most recent version of the Treaty of Lisbon. The second, a de facto analysis focusing on the breaches to said competence framework by European leaders during the five UE crises: financial crisis, migratory crisis, Brexit, COVID and the war in Ukraine. Some of these crises show that the European Council has gone beyond its competence framework and breached EU law, making the rest of the institutions into necessary collaborators. The main conclusions are three. First, the European Council, after the Treaty of Lisbon, has become the main constitutional and constituted «power» in the EU, holding key competences and becoming the essential institution in moving the integration process forward. Second, after studying the afo-rementioned crises, there is evidence that the European Council has consciously gone beyond the EU law framework, not basing their actions in existing legal frames, but in a clear will to avoid political or legal controls when it considers that a crisis calls for it. The third conclusion allows us to conclude that the rest of institutions, including the CJUE, have tried to justify these actions. © 2022, Centro Estudios Politicos Constitucionales. All rights reserved.

Constitutions vs. COVID-19: CrowdLaw as an Alternative in Crisis and Recovery

Coronavirus has activated the main constitutional mechanisms set in place to face exceptional circumstances in all countries that can be considered consolidated democracies. Constitutional systems make it possible for constituent powers to limit fundamental rights that are the cornerstone for the full exercise of citizenship in a democracy. Thus, for example, lockdowns and limitations on gatherings, de iure and de facto, limit or eliminate the right to assembly. Exception—constitutional instruments, that also allow for the transfer of parliamentary functions to the Executive power, are mostly designed, and many times thought to be exclusively used in extreme circumstances: wars or natural disasters that have an immediate impact on millions of people (causing death, the loss of the home or massive displacement, etc.). In these cases, it is assumed that parliaments and citizens must enter survival mode, and because of that, there is no reason to think that any type of citizen participation is possible. However, despite the gravity of COVID-19, the situation does not conform to the pattern I have just described. Most citizens, surely those that tend to participate in the ordinary democratic process, have been able to adapt their lives to the confines of their own homes thanks to civic responsibility and technology: work, education, socialization, shopping, etc. If this is so, why has the decision-making process not been able to adapt to the COVID pandemic? Furthermore, if citizen input is essential to control the situation and social distancing is a must, why is technology not the cornerstone of citizen's data recollection? This work analyzes the existing constitutional framework and the main governmental measures (norms and actions) adopted, in order to detect in which stages (out of the five basic policy and law-making stages) citizen participation could have been integrated, and how CrowdLaw might have helped to make participation more effective, and if CrowdLaw can help palliate the constitutional impact resulting from a pandemic, particularly in regard to the exercise of citizen participation, and in improving the quality and effectiveness of any measure that has been adopted. I argue that constitutional norms are compatible with CrowdLaw because they do not rule out the activation of CrowdLaw procedures neither in normal nor in exceptional circumstances. © 2022 Association for Computing Machinery.