The secret life of the EU treaties: NGEU and the politics of the EU’s ‘living constitution’

Abstract In the past decade or so, the text of the EU Treaties has stayed the same, yet their reading has undergone significant changes. The language of anti-formalism has triumphed over formalism, obviating the need for complex political debates and democratic processes inherent to actual Treaty revisions. This method of constitutional reinterpretation was ushered in by the NextGenerationEU and seems now, in the post-Draghi-Report world, the dominant way for the Commission to address its political priorities. This article explores the invisible side of constitutional change by legal engineering. It will examine the place of Treaty respect in the old vocabulary of EU law and discuss how the NGEU drove a wedge into this established vocabulary. The NGEU experiment demonstrates how reinterpretation of core Treaty provisions may provide solutions to immediate functional needs but tends to result in ill-functioning governance models that fail to provide a stable long-term basis for integration. Further, democratic participation, which lacks an established vocabulary in the EU legal language, is easily overlooked. Yet, it is the democratic process that breathes life into constitutional change. A constitution animated by political opportunism and technocratic reinterpretation rather than broader societal evolution is not a living constitution. At best, it is a puppet constitution, at worst, it is dead.