Emile Noël Fellow
Academic Year 2011-2012

 

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Barbara Guastaferro obtained a PhD in Constitutional Law from the School of Law of the University of Padua in 2010. She has been teaching “History and Politics of the European Union” at the University of Naples “L’Orientale” (Faculty of Political Science) since 2008. In 2009 she spent a research period at the European Court of Justice in Luxembourg and in 2004 she was intern at the “Permanent Representation of Italy to the European Union” in Brussels, where she assisted the Italian delegation in the follow-up of the Intergovernmental Conference approving the “Treaty establishing a Constitution for Europe.” She is currently a researcher in Public Law and she works as a research associate at the University of Naples “Federico II” (Department of Law and Economics). She has presented several papers and she has published several articles in the fields of European Constitutional Law, EU Law, EU Politics and Political Theory.

Research Project:

Legality and Legitimacy within the EU Legal Order

The assumption underlying my research is that the European Union (EU) is a system of public authority. The principle of legality, indeed, has traditionally served the purpose of limitation or, as Carl Schmitt puts it, of “rationalisation” of power. Nevertheless, its application to the European legal order has not been adequately addressed in scientific literature. Since the EU lacks both legislation stemming from a volonté générale and a hierarchy of norms—due to the so called “unity of secondary law”—many contributions focusing on the evolution of the EU as Rechtsgemeinschaft have emphasized the so-calledsubjective facet of the rule of law—i.e. the right to an effective legal protection before an independent court—rather than the objective facet of the rule of lawviz. the role of the principle of legality in limiting public authority. 
In an attempt to fill this gap, my PhD thesis investigates the Europeanization of the principle of legality against the backdrop of the relationship between EU and national legal orders. It examines the distinctive features of the “supranational legality,” first, and it engages in a critical discussion about the ECJ’s system of “constitutional adjudication” and about the existence of a “constitutional legality” within the EU. As an Emile Noel Fellow, I would try to bolster the last part of my research in which law is relocated among its neighboring disciplines, such as social sciences and political theory. My research efforts will be particularly devoted to focus on the complex relation between law and politics—whose coupling is the very essence of constitutionalism according to Luhmann—within the European legal order. 
In other words, the purpose of my research would be to rescue the concept of “legitimacy” in my analysis on the “legality” of the EU legal order, in order to assess if and to what extent it is possible to rebuff the critiques of those considering the EU as a system of “rule of law without democracy.” In this respect, building upon a literature review belonging to what has been referred to as the “normative turn” in EU studies, I will try to address the following research questions:

  1. What is the relation between pouvoir constituant, pouvoirs constitués and pouvoir commettant in the EU legal order?
  2. Is it possible to sketch a distinction between jurisdictio andgubernaculum in the EU legal order? (i.e. are the Member States completely free in acting as “Masters of the Treaty” or there are explicit/implicit limits to the amendment procedure envisaged by Article 48 TEU?)
  3. What is the connection between democracy and “constitutional adjudication” in the EU?