The Constitutional Imaginary and the ‘Metabolic’ Realities of European Integration

Understanding the European Union (EU) as an autonomously constitutional entity—what this volume evocatively calls the EU’s ‘constitutional imaginary’—has been central to judicial decision-making and legal scholarship on European governance over many decades. If our aim, however, is to understand what European governance actually is, rather than what the dominant discourse among lawyers, judges and law professors asserts it should be, then we must consider whether this discourse obscures more than reveals. The constitutional imaginary has primarily served, this chapter asserts, as an ideology that legal elites have deployed in a process of institutional change to overcome Europe’s polycentric, nation-state constitutional realities. The core weakness of this ideology as an agent of change, however, has been its almost exclusive focus on the ‘constraint’ function of constitutionalism rather than on the actual ‘constitution’ of power in a socio-political sense. The latter refers to the capacity of a system of governance not just to produce constraining legal norms but also to mobilise human and fiscal resources in a legitimate and compulsory fashion toward ends that governing bodies select. The construction of this sort genuinely ‘metabolic’ constitution in the EU—one unmediated through the member states—is the true Rubicon that European governance must cross in order to turn its ‘constitutional imaginary’ into a socio-political reality.

Draft dated 12 December 2020 (forthcoming in Jan Komárek, ed., The EU Constitutional Imagination: Between Ideology and Utopia, OUP) 3 The aim of Power and Legitimacy was perhaps more historical and socio-political than a legal scholar of integration might typically prefer, although the book's historical and sociopolitical insights certainly do have legal-normative implications. The book sought to describe what European governance actually is-an extension of administrative governance-rather than what the dominant discourse among lawyers, judges and law professors asserts it should be-a new form of constitutional authority beyond the state. Indeed, one might say that the underlying socio-political reality of European governance-its ultimately administrative character-has also done, to borrow Komárek's words, 'very important work for the whole construction to be sustainable '. 9 European governance depends, first and foremost, on a delegation of regulatory power from constitutional principals on the national level to primarily technocratic and juristocratic (ie 'administrative') agents on the supranational level. EU institutions also enjoy an electoral component by way of the European Parliament (EP)-something that many lawyers, judges and law professors often see as essential to advancing the EU's autonomously democratic and constitutional legitimacy. Nonetheless, this electoral dimension of European governance via the EP has in fact done little to alter the fundamentally administrative character of European integration. 10 The essential purpose of delegating regulatory power to EU institutions has been to create mechanisms to police the member states' fulfilment of their legal 'pre-commitments' to each other (most importantly, but hardly exclusively, in the area of free movement in all its forms). In fulfilling this function, these supranational agents-above all the European Commission and the Court of Justice, joined more recently by the European Central Bank (ECB)-possess considerable technocratic and legal legitimacy as well as normative autonomy (again, supplemented by an electoral component via the EP). Nonetheless, despite the 'constitutional imaginary' often used by legal elites to describe these supranational agents, they 9 See text accompanying n 1 above. 10  have never attained autonomous democratic and constitutional legitimacy of their own, even as their 'pre-commitment' function has had important consequences for the operation of democratic and constitutional power on the national level. 11 The core aim of Power and Legitimacy was to show that the actual socio-political development of European governance over the last seven decades-again, despite the 'constitutional imaginary'-has conformed much more consistently with what I have called the 'postwar constitutional settlement of administrative governance'. 12 Most importantly, the delegation of power to European institutions has given rise to a disconnect that is quite typical of administrative governance-between the legitimacy of robustly democratic and constitutional principals on the national level (executives, legislatures and courts), and the regulatory power that belongs to their increasingly far-flung agents in a diffuse administrative sphere, one that now extends to the supranational level. It is precisely because the EU lacks robust democratic and constitutional legitimacy of its own (in line with similar entities of an essentially delegated, 'administrative' character) that the integration project has depended, in socio-political fact, on a broad range of legal and institutional mechanisms to channel the legitimacy of national institutions to the supranational level, thus helping to bridge that disconnect. These mechanisms of 'mediated legitimacy' are the central focus of Power and Legitimacy, and they include various forms of national executive, legislative and judicial oversight, all of which sit uncomfortably within any purportedly autonomous constitutionalism at the EU level. Of course, one might argue that such mechanisms are simply 'features which distinguish European from national constitutionalism'. 13 However, that sort of 'definitional fiat' seems designed, above all, to preserve the EU's 'constitutional imaginary' in the face of disconfirming evidence flowing from integration's deeper socio-political realities as an extension of administrative governance. 14 11 The rise of the administrative state over the course of the twentieth century has had, one might say, a similar impact on democratic and constitutional governance on the national level. See 15 Indeed, as the present contribution will describe, my own work over the last decade has tried to elaborate on two such underdeveloped aspects of the book's argument in particular.
The first, discussed in Part I below, involves the theory of institutional change that animates the analytical narrative set forth in Power and Legitimacy. 16 Although the book was meant to exemplify that theory in operation, it in fact only briefly outlined its basic dimensionsfunctional, political, and cultural-early in the Introduction. 17 Several of my subsequent writings have illuminated those dimensions in greater depth, 18 while also making more explicit how their interaction explains institutional change in the case of European integration. 19 Most importantly for our purposes here, this additional elaboration has made much clearer the place of constitutional ideology in European integration, operating as one of many competing conceptions of 'right' (legitimacy) operating in the third, 'cultural' dimension of institutional change. 20 The second aspect of my work over recent years, discussed in Part II below, has sought to further clarify the criterion by which one should distinguish constitutional from nonconstitutional or sub-constitutional (ie administrative) domains of governance. This work has focused in particular on the 'metabolic' function of genuinely 'constituted' authority, ie the capacity of a constitutional level of governance not just to produce regulatory norms (something administrative bodies can do as well) but also to mobilise human and fiscal resources in a 15 Lindseth, Power and Legitimacy (n 3) xv. 16 See eg Peter L Lindseth, 'Between the "Real" and the "Right": Explorations Along the Institutional-Constitutional Frontier' in Maurice Adams, Ernst Hirsch Ballin and Anne Meuwese (eds), Constitutionalism and the Rule of Law: Bridging Idealism and Realism (Cambridge University Press 2017). 17 Lindseth, Power and Legitimacy (n 3) 13-14. 18 In addition to Lindseth, 'Between the "Real" and the "Right"' (n 16), see Peter L Lindseth, 'Evolutionary Public Law: Constituting and Administering Human Ultra-Sociality' in Peter Cane and others (eds), Oxford Handbook of Comparative Administrative Law (Oxford University Press forthcoming); Peter L Lindseth, 'Institutional Change and the Continuity of Law' (forthcoming) 55 Connecticut Law Review. 19 Lindseth, 'Between the "Real" and the "Right"' (n 16); Peter L Lindseth, 'Transatlantic Functionalism: New Deal Models and European Integration' (2015) 2 Critical Analysis of Law 83. 20 See nn 36-38 below and accompanying text.
Draft dated 12 December 2020 (forthcoming in Jan Komárek, ed., The EU Constitutional Imagination: Between Ideology and Utopia, OUP) 6 legitimate and compulsory fashion, and then redirect those resources toward the ends that those constitutional institutions define as essential to the well-being of the polity. 21 This second aspect of my work points to perhaps the greatest weakness with Europe's 'constitutional imaginary': its almost exclusive focus on the 'constraint' function of constitutionalism rather than on the actual 'constitution' of power to mobilise human and fiscal resources in a legitimate and compulsory fashion. 22 The success of any fundamentally regulatory (ie 'administrative') regime like the EU ultimately depends on whether and how this metabolic function has in fact been constituted in socio-political and not just legal terms. 23  The construction of a genuinely metabolic constitution at the European level-one characterised by an autonomous capacity to mobilise fiscal and human resources in a legitimate and compulsory manner, unmediated through the member states-is the true Rubicon that integration must cross in order to turn its 'constitutional imaginary' into a socio-political reality. 25 The recent struggles over the 'Next Generation EU' (NGEU) recovery instrument, to which this contribution will turn at the end of Part II, reveals the depth and breadth of this Rubicon quite nicely. As of this writing (December 2020), there are indications that the EU may finally be initiating a genuinely 'constitutionalising' dynamic in the metabolic sense that I am using the term here, based on the common borrowing of NGEU and the imposition of 'rule-of- 21  Draft dated 12 December 2020 (forthcoming in Jan Komárek, ed., The EU Constitutional Imagination: Between Ideology and Utopia, OUP) 7 law conditionality' to distribute the proceeds. But, as will be explained further below, it is too soon to tell whether that dynamic will gain sufficient traction, notably in supplementing common borrowing with a genuinely autonomous taxing authority, to gain a durable institutional existence over the long term. 26

I. Constitutional Ideology and the 'Cultural' Dimension of Institutional Change
One cannot understand the role of Europe's 'constitutional imaginary' without first appreciating the broader process of institutional change in European governance. 27 Indeed, European integration can and should be understood as fundamentally a process dealing with 'institutional change'; that is, the many ways that the forms of governance inherited from the past (notably Europe's polycentric, nation-state constitutional system) have been transformed by the establishment of a set of 'pre-commitment' agents operating at the supranational level. Power and Legitimacy builds on a theory of institutional change operating in three dimensions-'functional', 'political', and 'cultural'-whose demands have shaped the shifting contours of European and national governance across time. 28 Admittedly, the specific treatment of this theory in Power and Legitimacy was all too brief and left several key questions under-elaborated: How should we properly understand how those dimensions interact to cause institutional change?
And more importantly for our purposes here, how should we understand the role of constitutional ideology within those various dimensions? To begin to answer these questions, let us start by outlining the three key dimensions of institutional change in a bit more detail.
The first, as noted, is 'functional'. By this I am referring to the idea, well known in the historical-institutionalist literature, that institutions often evolve as a function of the problems they seek to solve. From this classically functionalist perspective, actors are compelled to respond to objective demands ('needs') presented by their natural or social environment, subject 26 See nn 56-65 below and accompanying text, as well as, more generally, Peter Lindseth and Cristina Fasone, 'Rule-of-Law Conditionality and Resource Mobilization -the Foundations of a Genuinely "Constitutional" EU?', Verfassungsblog (11 December 2020), https://verfassungsblog.de/rule-of-law-conditionality-and-resource-mobilization-the-foundationsof-a-genuinely-constitutional-eu/. 27 The discussion in this Part draws significantly from Lindseth, 'Between the "Real" and the "Right"' (n 16). 28 Again, see Lindseth, Power and Legitimacy (n 3) 13-14.
Draft dated 12 December 2020 (forthcoming in Jan Komárek, ed., The EU Constitutional Imagination: Between Ideology and Utopia, OUP) 8 to functional constraints on available resources, whether environmental or technological, among others. Supplementing these fundamental drivers of (and constraints on) change, however, are those relating to interest-based conflict in the second-'political'-dimension. The analysis here focuses on the fact that 'the world is always already institutionalized', 29 and that actors necessarily struggle over the allocation of scarce institutional advantages, whether existing ones that they seek to preserve, or newer ones that others seek to realise. However, in this struggle over functional demands/constraints as well as the political preservation/realization of institutional advantages, actors will necessarily mobilise interpretive frameworks-conceptions of 'right' (or legitimacy)-in the third, 'cultural' dimension. The purpose of this mobilization is to help justify or resist functional and political pressures for change. As we shall see below, it is in this latter dimension that the mobilization of a constitutionalist ideology by European legal elites has played a key role in the process of European integration.
These various dimensions of change, it should be stressed, are obviously not hermetically sealed from each other. Instead, they overlap and interact in complex ways over time and place, and for this reason, any effort to isolate them for purposes of analysis is really just a heuristic step toward a broader historical synthesis that seeks to take full account of their overlapping and interactive character. With specific regard to European integration, for example, economic or social shifts in the functional dimension (eg the extension of markets beyond national borders) may, depending on the array of interests, trigger either support or resistance in the political dimension (eg the creation of, or opposition to, transnational forms of governance to regulate those markets). Moreover, this functional/political interaction will be subject to varying and potentially contradictory interpretations mobilised in the cultural dimension (eg theories of 'constitutionalism' or 'democracy' beyond the state, or invocations of 'sovereignty' to define the true locus of legitimate governance as 'national'). Finally, the availability of cultural conceptions of right (or, conversely, their limited availability) can also be understood as a resource constraint that has evident functional and political consequences. In this way, the line of causation between these various dimensions will always be multidirectional, and there is no guarantee that new 10 the nation-state as its transcendence. 33 The most persistent manifestation of this 'hysteresis' was the consistent refusal of Europeans to transfer power of legitimate compulsory mobilization of fiscal and human resources to the supranational level. Rather, instead they gave extensive regulatory power to supranational 'pre-commitment' bodies-again, most importantly, the European Commission and Court of Justice-in order to police the member states' compliance with various legal obligations to each other, especially with regard to free movement in its various manifestations.
On the basis of that functional pre-commitment power, European judges, lawyers, and law professors have nonetheless argued, in the political domain, for an expansive understanding of supranational authority, one that they then buttressed, in the culture domain, by recourse to a constitutionalist ideology. By establishing themselves, according to that ideology, as defenders of a new patrimony of seemingly constitutional rights (generally market-based) against national encroachments, the Court and its allies were able to draw on what Joseph Weiler famously called 'the deep-seated legitimacy that derives from the mythical neutrality and religious-like authority with which we invest our supreme courts'. 34 This constitutionalist 'ethos', however, was as much (if not more) the product of the special historical conjuncture of the postwar era as it was the expression of essential aspects of constitutionalism writ large. 35 It is the historical contingency of the postwar era that gave special force to the cultural conception of 'right' (legitimacy) that would become central to integration's 'constitutional imaginary'. This powerful cultural current allowed the ECJ to present itself as 'simply a continuation of the traditional role of European courts and, indeed, liberal courts everywhere: the protection of individual rights against the state'. 36 The constitutional framing of EU law proved similarly empowering to lawyers and legal scholars, who could now assert that they were no longer operating within the traditional paradigm of international law, with its questionable binding force. Rather, they were now specialists in a new kind of genuinely 'constitutional' law-a 'higher law' over and above the 33  11 member states 37 -which offered considerably more constraining authority on national conduct, not to mention professional prestige for the legal advocates and theorists advancing these claims. 38 The problem with this understanding, however, has always been rooted in its hyperlegalism, which has led to an almost exclusive focus on the constraint function of constitutionalism to the exclusion of the actual 'constitution' of power in a deeper 'metabolic' sense. Above all, this 'constitutional imaginary' conveniently ignored the fact that all lawincluding sub-constitutional (ie 'administrative') public law-also serves such a constraint function, and that the existence of a constraint function alone tells us nothing about what differentiates the realms of specifically constitutional from non-or sub-constitutional law, in the EU or otherwise. 39 And yet, by providing a kind of interpretive lingua franca, the constitutional ideology socialised generations of European elites (many legally trained) to overlook the EU's lack of the necessary socio-political underpinnings for genuine constitutional authority: the autonomous capacity to mobilise fiscal and human resources (about which more in Part II below). In this way, Europe's constitutional imaginary arguably contributed to deeply flawed institutional and policy choices that led to the many crises of the last decade. The common currency, for example, presupposed a degree of centralised political power and legitimacy, most importantly relating to shared taxing and borrowing authority, which the EU obviously has long lacked and only recently, via the NGEU pandemic recovery instrument, has seemed any closer to attaining (and in that case only with regard to borrowing). Moreover, the still tenuous border-free zone in Schengen, which was placed under great strain both by the migration crisis of the mid-2010s as well as by the coronavirus pandemic that overtook Europe in 2020, ultimately 37 See eg Tuori (n 13) 10-11. 38 39 Lindseth, 'The Perils of "As If" European Constitutionalism' (n 14) 704. presupposed a degree of centralised political power and legitimacy to mobilise human resources (policing, defence and border control) that the EU has been struggling to develop, albeit slowly. 40 In this way, the last decade of crisis directs our attention to a fundamental contradiction which the 'constitutional imaginary' has ultimately been unable to conceal in the face of the EU's deeper socio-political realities: 'National institutions are increasingly constrained in the exercise of their constitutional authority'-the classic constraint function of constitutionalism on which this imaginary depends-'but supranational institutions cannot fill the void because they are unable to transition to genuine constitutionalism-that is the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion'. 41 Unless and until Europe transcends this 'as if' constitutionalism and replaces it with the genuine article, the European project will continue to struggle to meet the many geopolitical and macro-economic challenges facing it in the years to come.

II. Demos-Legitimacy and the Metabolic Constitution of European Integration
To understand why this contradiction continues to exist in European integration inevitably requires us to return to the deeper socio-political consequences of the (alas, persisting) 'no-demos' problem in EU public law. The ultimately national foundations of Europe's political metabolism-the legitimate compulsory mobilization of resources-is intimately bound up with the sociological difficulty of constructing an autonomously constitutional demos-kratia at the EU level. This dimension of integration is something that the 'constitutional imaginary' almost entirely ignores, or at least sees as a problem of institutional engineering and political will, not socio-political transformation. However, as Robert Dahl long ago reminded us, a constitutional 40 Frontex, which was re-established in 2015 as the European Border and Coast Guard Agency in response to the migration crisis, may suggests some modest movement in a positive direction. Its expanding powers include, inter alia, deployment of teams for joint operations with member states as well as rapid interventions where a member state's border control proves deficient and an urgent need for EU assistance exists. This is an important if small step in the development of the EU's coercive policing powers, leading the agency's chief to say in a 2018 interview: 'I would not object if you define us as a law enforcement agency at EU level.' Nikolaj Nielsen, 'Frontex: Europe's New Law Enforcement Agency?', EU Observer (22 February 2018), https://euobserver.com/justice/141062. For further discussion, see Lindseth, 'The Democratic Disconnect, the Power-Legitimacy Nexus, and the Future of EU Governance' (n 21). 41 Lindseth, 'The Perils of "As If" European Constitutionalism' (n 14) 701.
demos-kratia cannot be simply engineered through mechanisms of representation in which an electorate (however randomly defined) is allowed to select their representatives to govern the polity. 42 The more difficult, and antecedent, question has always been whether and to what extent that electorate experiences itself as part of a demos; that is, as part of a robustly coherent polity in which the power of the majority to rule over the minority can operate without that rule being experienced as domination by an 'other'.
The most important consequence of this need for robust demos-legitimacy is, I would suggest, 'metabolic': In a democratic age, only when elected representatives possess this highest form of political legitimacy can they extract resources from society in a legitimate and compulsory manner and then redirect them, on behalf of the demos, toward public ends that those representatives define. This 'metabolic' capacity to convert social resources into public goods goes well beyond the primarily regulatory power that the EU enjoys, whose legitimacy need only be technocratic and juristocratic, even if supplemented by an electoral component in the EP. Genuine demos-legitimacy requires an antecedent socio-political transformation that we could analogize to a 'phase transition' from liquid to solid, to borrow a notion from the natural sciences. 43 European governance may well eventually achieve such a transformation when or if Europeans begin to experience democratic self-government in truly supranational terms. Only then will EU institutions be able to exercise legitimate compulsory mobilization of resources unmediated through the member states (contra what the 'own resources' requirements of Article 311 TFEU, for example, require). 44 The current limits in EU power, as well as its ultimate grounding in legal, technocratic and juristocratic legitimacy, is a reflection of what my more recent work has been calling the 42 Robert Dahl, 'Can International Organizations Be Democratic? A Skeptic's View' in Ian Shapiro and Casiano Hacker-Cordón (eds), Democracy's Edges (Cambridge University Press 1999). For the classic effort to translate this concern into the European context, see JHH Weiler, 'Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision' (1995) 1 European Law Journal 219. 43 Lindseth, 'Between the "Real" and the "Right"' (n 16). 44 Article 311 TFEU requires unanimity in the Council and only the consultation of the European Parliament, and its entry into force is conditional upon the approval of the Member States according to domestic constitutional requirements (ie normally the approval of individual national parliaments). 14 'power-legitimacy nexus'. 45 This nexus derives from the fact that the nature of a polity's underlying socio-political legitimacy also ultimately determines the scope of power that the polity can effectively and durably exercise. As Dahl rightly suggested, for representative institutions to be experienced as robustly demos-legitimate, both the electorate and the broader polity require socio-political underpinnings which the polycentric character of European history makes quite difficult to realise at this point (at least in a 'metabolic' sense). In a manner consistent with Dahl, Neil MacCormick also rightly recognised that democratic and constitutional legitimacy is tied to the sense that a particular political community, as a collectivity, sees itself as 'entitled to effective organs of political self-government' 46 through institutions that the community constitutionally establishes for this purpose. As MacCormick further taught us, a demos need not be grounded in exclusionary ethnic, religious, or linguistic affinities-in other words, demos-legitimacy can also be 'civic'-but it still must be grounded in a 'historical' and indeed 'cultural' experience for a particular community. 47 It was arguably out of concern for these socio-political underpinnings that MacCormick-himself a great pluralisteventually developed deep reservations about excessively pluralist theories of governance beyond the nation-state. In his view, these excessively pluralist perspectives (not unlike the constitutional pluralist views that dominate much EU legal discourse) paid too little attention to problems of 'societal insecurity that lie at the heart of Hobbes's vision of the human condition … The diffusionist [ie, pluralist] picture is a happy one from many points of view, but its proponents must show that the Hobbesian problems can be handled even without strong central authorities, last-resort sovereigns for all purposes'. 48 The value of such sovereigns, if they are worth having at all, is precisely in their capacity to mobilise fiscal and human resources in a legitimate and compulsory fashion to meet collective challenges that confront a given society. 49 Unfortunately, the EU, as currently constructed, lacks Draft dated 12 December 2020 (forthcoming in Jan Komárek, ed., The EU Constitutional Imagination: Between Ideology and Utopia, OUP) 15 such a 'strong central authority' in this metabolic sense. The EU depends, rather, on a constitutional metabolism operating almost exclusively at the national level, and in this crucial respect (to borrow a term from one avowed EU constitutionalist), it is 'parasitic' on democratic and constitutional authority of its member states. 50 While functional pressures seem to persistently favour 'more Europe', the robust demos-legitimacy tied to national institutions have acted as a clear counterweight to these functional pressures, reflecting Bourdieu's 'hysteresis' in action. 51 This robust national legitimacy-best evidenced by the traditional concentration of compulsory mobilization powers at the national level-continue to define political interests and shape discourses in favour of a more incremental, sub-constitutional approach to European governance, even as the 'constitutional imaginary' still broadly retains appeal in the legal domain.
One might raise the question, at this point, as to whether the 'Next Generation EU' (NGEU) pandemic recovery instrument constitutes an important step toward the Europeanisation of fiscal capacity, at least in terms of borrowing if not of autonomous taxing authority. In this regard, it is important to remember that the treaty requirements on 'own resources' under Article 311 TFEU-unanimity in the Council, EP involvement limited to consultation, and entry into force strictly subject to the approval of the member states according to domestic constitutional requirements (ie, national parliaments)-apply both to taxes as well as common borrowing under the Multiannual Financial Framework (MFF). NGEU did not change any of that; indeed, the instrument was in fact adopted on the basis of those requirements. The MFF has traditionally been financed by national contributions (nearly 80%), while only the remainder has come from 'own resources'-historically sugar levies, custom duties, and a percentage of the harmonised Value Added Tax (VAT)-all of which are in fact collected nationally. 52 The pandemic response has altered this reality only slightly, by adding a layer of shared EU debt to these national contributions and nationally-collected 'own resources', allowing the MFF to reach a level of roughly 2% of GNI for a limited two-year period. Moreover, the entirety of the 'own resources' 50 Tuori (n 13) 3-4. 51  16 tax revenues needed to support the borrowing to finance the recovery fund will still be mobilised at the national level. There remains, in other words, no EU tax collection authority that 'wears the EU badge', so to speak, operating on the basis of the EU's own autonomous legitimacy to extract fiscal resources from society rather than the legitimacy of the member states.
This fact, perhaps more than any other, shows why the financing of NGEU is not some kind of 'Hamiltonian moment' for the EU (a point on which there was considerable scepticism in any case). 53 Many observers fixate on debt-mutualisation as the primary sign of such a moment, when in historical fact the true Hamiltonian innovation of the founding period in the United States was the conferral of taxing authority on the federal government in the US Constitution. 54 The current situation in the EU-in terms of the actual mobilisation of resources-might be analogized to the 'pre-constitutional' United States under the Articles of Confederation, in which the 'confederal' level, such as it was, remained entirely dependent on the polycentric legitimacy of its constituent states to mobilise resources on the confederation's behalf. Thus, in terms of the metabolic constitution that actually supports European integration, NGEU will not cross the crucial Rubicon, that of a Europeanising taxation authority to accompany the increased borrowing under the MFF. The financial underpinnings of the new recovery fund are still entirely in keeping with how the Member States financed the response to the Eurozone crisis over the prior decade-ultimately through their own fiscal capacities, whether directly or indirectly (for example, through the capital backing such mechanisms as the ESM or the ECB). 55 All that said, there may still be room for a measure of (very cautious) optimism regarding the 'constitutionalising' potential of NGEU, particularly when conjoined with the sort of 'ruleof-law conditionality' that raised such hackles among the Polish and Hungarian leadership in the lead up to the European Council meeting of 10-11 December 2020. 56 The massive borrowing operation needed to finance NGEU (up to 750 billion euro)-by far the most significant such operation in the history of the EU-'will see [the Union's] balance sheet transformed from occasional issuer to market stalwart'. 57 This extensive borrowing, even if temporary, will give the EU a capacity to mobilize fiscal resources on a scale that it has never previously enjoyed.
This program may well give rise, in effect, to the long sought European 'safe asset'-a 'Eurobond' in all but name. 58 These new bonds 'could boost integration between national financial systems, reduce the risk of runs on national bond markets, and help detangle the "doom loop" of interdependence among banks and local sovereigns'. 59 Given the functional benefits this borrowing offers, it will not be surprising to see significant pressure-despite resistance from the usual quarters 60 -to make similar operations a permanent feature of the EU fiscal landscape. This capacity will, of course, still depend on the backing of taxes imposed and collected at the national level, drawing on the member states' more robust democratic and constitutional legitimacy. Nonetheless, NGEU will create tangible incentives to ensure debt sustainability through more extensive, nationally-coordinated tax legislation. And while this coordination will remain under the rubric of the 'own resources' decision adopted under Article 311 TFEU, the obvious functional advantages of common borrowing could be conducive to facilitate, over time, a de facto fiscal mobilization capacity in the EU that is much less fragmented among the member states than it is today. In this regard, the common borrowing of NGEU holds out the possibility of 'reshap[ing] the EU's political economy'. 63 With that reshaping, moreover, also could come a kind of polity-building power that reaches well beyond the sort of technocratic and juristocratic 'pre-commitment' authority that has underpinned European integration up to this point. No doubt rule-of-law conditionality is not new-it was widely used in the EU enlargement process and remains a tool in the distribution of structural funds. What is new, however, is the genuinely 'constitutional' scale of the supranational resource-mobilization that, via NGEU, this new conditionality mechanism will support, vastly increasing the EU's collective leverage over the conduct of national governments.
In so doing, the combination of NGEU and the rule-of-law conditionality may help to create a new constitutional dynamic toward a new kind of post-pandemic EU, one that will have the effect of defining the boundaries of full membership in a much more robust sense than Articles 2 and 7 TEU could ever achieve on their own. This arguably explains the intense resistance of the Hungarian and Polish governments, as well as their insistence that the conditionality compromise negotiated by the German Presidency and agreed by the European Council in December 2020 64 not come into effect until reviewed by the CJEU. In this respect, the German compromise, while certainly not beyond criticism, 65 clearly moves the integration project in the right direction.
But even if this deal fails to get the Court's endorsement (despite the tremendous pressure from the EU25 and the EP), this entire episode will arguably have brought European integration