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Higher-Level Constituent Power

This chapter makes the first step in the construction of a new theory of constituent power in the EU by proposing a conceptual framework that clarifies the relation between the EU’s constituent power and the national constituent powers. In this way, it seeks to counter the objection that the EU cannot have its own constituent power because the member states retain the Kompetenz-Kompetenz. By means of a rational reconstruction of the ordinary revision procedure, especially the convention method, the chapter argues that the EU’s rules of treaty change already contain the first beginnings of a procedural-institutional innovation that can be described as a ‘levelling up’ of constituent power. One can speak of higher-level constituent power when nation-state peoples issue an authorization for constitutional politics at the supra-state level and in this way bring about a new constituent subject to which they delegate control over particular decisions. According to this view, the EU’s constituent power is neither independent of, nor equivalent to, nor combined with the constituent powers of the member states, but rather delegated by them.