Was Grimm wrong? Putting the Over-constitutionalization of EU Law to the Test

Abstract EU law is over-constitutionalized. Advanced a decade ago by Dieter Grimm, this thesis seems like a truism that requires neither proof nor refutation. This Article follows a different intuition: What if Grimm was wrong? Breaking with an orthodoxy of EU law, the article puts the over-constitutionalization thesis to the test. It reveals that Grimm’s claims are questionable at a theoretical, analytical, and normative level. Grimm departs from the premise that any constitution faces the task of striking a balance between stability and flexibility at the level of the constitutional text and between law and politics on the institutional plane. According to Grimm, this balance is disturbed at the EU level, an analysis which appears plausible at first sight. However, in both respects—Treaty text and institutional practice—there is a mismatch between Grimm’s theory and reality. While he overestimates the Treaties’ rigidity in substance and procedure, he underestimates the rise of judicial responsiveness and legislative activity. These analytical shortcomings taint Grimm’s normative proposal. Disregarding the institutional practice, he suggests scaling back the Treaties to their genuinely constitutional contents. Drawing on Luxembourg’s increasing responsiveness to the Union legislature this Article advances an alternative way forward by further calibrating the Court’s jurisprudence.