Mapping the Overlapping Spheres: European Constitutionalism after the Treaty of Lisbon

Abstract Despite their substantial similarity, there are two principal overarching differences between the abandoned Constitutional Treaty and its intended successor, the Treaty of Lisbon. The latter document has been methodically stripped of many elements that gave the former a "constitutional" flavour; and the latter text has been interspersed with numerous additional safeguards to prevent the encroachment of EU law upon member state law. In this way the Treaty of Lisbon signals, on balance, a rejection of the notion of EU law either as inherently superior to member state law or inherently expansive in its scope. Rather, it is more conducive with a pluralist conception of European constitutionalism in which EU and member state law constitute parallel and overlapping spheres. They are parallel in that they coexist without either one being superior to the other; and they are overlapping in that they have partly merged, but also remain separate in important ways. In fact if we "map" the overlapping spheres we find three distinct legal "zones" kept apart by well-maintained boundaries, in which the overall constitutional order is relatively stable and coherent. Whether or not the Treaty of Lisbon becomes law, this pluralist conception will endure for the foreseeable future