[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alice Valdesalici reviews Antonia Baraggia’s Ordinamenti giuridici a confronto nell’era della crisi. La condizionalità economica in Europa e negli Stati nazionali (G. Giappichelli Editore 2017).]
—Alice Valdesalici, Senior Researcher, Institute for Comparative Federalism
Antonia Baraggia’s book–Ordinamenti giuridici a confronto nell’era della crisi. La condizionalità economica in Europa e negli Stati nazionali–provides a comparative analysis of different legal systems during the recent economic crisis, in particular, it explores the impact of economic conditionality on both the European Union and two member States, Greece and Portugal.
Baraggia’s investigation can be placed at the crossroad between comparative constitutional studies of constitutional change and constitutional crisis. Its main assumption is that economic conditionality can be conceived as one of the drivers of ‘constitutional mutation’ in EU member States, to the extent that it challenges the foundation of the welfare state model.
The idea of ‘constitutional mutation’ is borrowed from biology; it is used in the book to outline the impact of the economic crisis on the constitutional order at both the supranational and national level. The concept can be traced back to the broader category of constitutional change. However, it differs from existing concepts, such as constitutional amendment or dismemberment, due to its encrypted and revolutionary nature. In some senses it resembles the German concept of Verfassungswandlung, although it is also distinct from this concept due to its exogenous nature.
In testing the main hypothesis of her book, the author adopts a comparative and historical methodology, which enables the author to explore the evolution of the constitutional order in different locations over time, taking into consideration the impact of political, social and economic factors, in each case. In this way the author makes a unique contribution to this area of study: the mainstream literature largely limits the inquiry to the EU level, or to single case studies. The comparative approach adopted by this author allows for a much deeper understanding of the phenomenon, its causes and implications, while also affording the reader the opportunity to see how the hypothesis fares when applied to different countries
The author’s deep knowledge of the topic is evident from the very first chapter, which explores the concept of constitutional mutation from a theoretical standpoint and shows the main transformations caused by economic conditionality. Baraggia argues that these are not limited to the EU level, but also involve the EU-State relationship, infringing upon the symmetric relation the no-bail out clause was meant for. Against this composite scenario, the author identifies a set of indicators of change, i.e. the resurgence of intergovernmentalism, the frequent use of emergency instruments or hybrids, (in circumvention of EU law), the alteration of equality among member States, changes in the EU-States relations and, finally, challenges to State sovereignty caused by economic conditionality and budget constraints. As these all touch upon essential aspects of the EU legal order, the significance of this study is clear from the beginning.
Linked to this theoretical background, the second chapter outlines the main features of economic conditionality, starting with the international experience and moving to the European context. Taking the latter into consideration, the author describes the circumstances of the crisis and the use made of conditionality within the Eurozone, emphasizing the challenges this poses to the existing legal framework. Attention is given to the jurisprudence of the European Court of Justice, considered by the author as the main channel for the legitimation of conditionality within the European legal order. As such, EU jurisprudence has prompted a metamorphosis of the EU system with an impact on the division of powers, the relations between member states and, last but not least, the fundamental traits of European economic governance.
The impact of conditionality is not confined to the EU level, it is also felt by member states, particularly those that benefit from financial assistance and, thus, must comply with the terms of conditionality. This is the focus of chapter three, which examines the effects of conditionality on the constitutional order of the member states, which received a bailout. The author chooses Portugal and Greece as case studies through which to explore this interaction. In looking for mutations, the comparative analysis follows three main lines of investigation: the traditional division of power, the protection of (social) rights, and the pressure on State sovereignty.
This part of the book is very effective in stressing the profound ways economic conditionality interferences with the domestic constitutional order. Although there are differences in each case study, it emerges that both systems undergo a process of constitutional mutation in response to the crisis. In the author’s view, the phenomena she has identified in this comparative study can be considered the phenotype of the constitutional mutation that affects not only the nature of political power, but also the very nature of State sovereignty, especially in relation to in-bailout States. A major concern is that in these bailout states the overall process undermines their sovereignty, which appears to be taken over by stronger member states and powerful financial institutions, which dictate the terms of conditionality.
The book paints a fascinating picture of the enduring mutations affecting the welfare state model in the aftermath of the economic crisis. The author not only provides an excellent comparative and critical overview of these transformations, she also manages to capture constitutional mutations at work, as this process is still far from over. Thus, the book is a very useful tool for understanding the challenges economic crisis poses to traditional legal categories.
Whether or not these transformations undermine the paradigm of the welfare state and the essence of modern constitutionalism is an issue that remains open. Although the two case studies in this book provide strong evidence to support this argument, a more extensive comparative scrutiny would allow to robustly test this theory, which should include not only other in-bailout States, but also other States that have not experienced a bailout.
Suggested Citation: Alice Valdesalici, Review of Antonia Baraggia’s “Ordinamenti giuridici a confronto nell’era della crisi. La condizionalità economica in Europa e negli Stati nazionali”, Int’l J. Const. L. Blog, Oct. 9, 2019, at: http://www.iconnectblog.com/2019/10/book-review:-alice-valdesalici-on-antonia-baraggia’s-“ordinamenti-giuridici-a-confronto-nell’era-della-crisi-la-condizionalita-economica-in-europa-e-negli-stati-nazionali”
 On the concept see further: ex plurimis, K. Tuori (2014), The Eurozone Crisis. A Constitutional Analysis, Cambridge University Press; F. Fabbrini (2016), Economic Governance in Europe: Comparative Paradoxes and Constitutional Challenges, Oxford University Press.