From the Council of Europe to the EU - The Living Constitution

When dealing with the functioning of the strategy of conditionality in the Council of Europe and in the EU, authors frequently use the expression ‘political conditionality’.^{[47] [48] The open texture of the relevant terms of reference - basically the European yardstick - leaves a lot of discretion to the monitoring authorities.}

The strategy of conditionality has implied, especially in recent times, a piecemeal approach, insofar as single constitutional provisions or single legislative acts have been at the centre of the monitoring authorities’ attention.

From the Council of Europe to the EU - The Living Constitution 25 behaviour, therefore, was welcomed by the Parliamentary Assembly and by the Committee of Ministers of the Council. If we wanted to use a theoretical concept for these choices, we could argue that the mentioned authorities decided on the basis of the ‘living constitution' of the applicant states.

The concept of a living constitution^[50] is frequently used by scholars who are not satisfied with a formalistic approach to the study of constitutional law. They think that knowledge of the law in force requires something more than the reading and construction of constitu­tional and legislative texts. A scholarly approach to the constitutional systems implies the construction of an effective legal practice. Not only the formally adopted legislative provi­sions, but also the concrete acts and behaviours of the constitutional actors deserve to be taken into account. Therefore, only a living constitution can allow lawyers to capture effec­tive guidelines for a constitutional order.

The living constitution is a concept that has emerged from the analysis and understanding of the acts and behaviours of constitutional authorities, of the conventions of the constitu­tion agreed between them, and of the case law of the constitutional courts and judges.^[51] In the presence of a constitution that is actually in force, the concept is also a yardstick for the credibility of our construction of the constitution's text and symptomatic evidence of the compliance (or non-compliance) with the constitution itself. The usefulness of the concept is especially evident when we are dealing with developments in the interpretation of the constitutional legislation. These developments normally imply various and serious transfor­mations of the meaning given by the interpreters to the relevant acts and behaviours. These developments may determine the transformation of a state's order.^[52] The written constitu­tion is concerned with such a phenomenon insofar as its practical implementation changes according to the changing interpretations by the constitutional actors. Moreover, even if the text of a written constitution is missing, we can perceive the constitutional tendencies through the use of the concept of a living constitution. This analytical attitude was evident in the reactions of the governing bodies of the Council of Europe when dealing with the problem of the accession of the ex-communist countries.

Moreover, the concept of a living constitution may be useful in the ordinary exercise of monitoring functions. Interpretations of a single provision currently in force that conflict with the constitutional principles of a given constitutional order can always be judicially reviewed.

An overall scrutiny of the general constitutional practice of a state, in light of the principles enshrined in its constitution, can require the adoption of a wider perspective illumi­nated by the concept of the living constitution. The usefulness of the concept may appear evident, for instance, in the presence of recent developments concerning the application of Article 7 TEU.

The Opinions of the Parliamentary Assembly of the Council of Europe adopted at the end of the twentieth century^[53] on the applications for membership submitted by the Central and Eastern European states are examples of the use of the concept of a living constitution. These documents confirm that the concerned states were ‘able and willing' to fulfil the provisions of Article 3 of the Statute of the Council of Europe^[54] and were ready to collaborate ‘sincerely and effectively' in the realisation of the purposes of the Council of Europe. However, the presence of a liberal and democratic written constitution was not always considered strictly necessary. For instance, Hungary's admission was justified with reference not only to new constitutional provisions, but also to the effective establishment of a parliamentary democ­racy and the commitment to sign the European Convention on Human Rights.^[55] In the case of Poland, special importance was given to the Polish ‘pioneering role in the democ- ratisation process in Central and Eastern Europe'. Evidence was offered by the organisation of ‘partially free' parliamentary elections.^[56] The organisation of democratic parliamentary elections held by a universal, free and secret ballot had an important impact on the admis­sions of Bulgaria and Lithuania some years later.^[57] Estonia was evidently required to settle questions concerning citizenship before accession to the Council, which was justified by the holding of parliamentary elections and other commitments.^[58]

The existence of written constitutions was underlined by the Parliamentary Assembly when it welcomed the applications of the Czech and Slovak Republics.

The documents mentioned above reveal that the new Central and Eastern Europe democracies were admitted to the Council of Europe on the basis of complex evaluations. The compliance of their existing constitutional practices with the European principles and values was taken into special consideration by the authorities of the Council. A positive welcome of the applications of membership was approved by the Parliamentary Assembly even in the absence of a formally adopted written constitution. Moreover, the commitments of the interested states to the new extensive constitutional reforms played a relevant role. Inter alia, these commitments were at the base of the transition that implied the functioning of the strategy of conditionality. Conditionality evidently played a different role according to the different evaluations and interpretations of the governing bodies of the Council. In the following years, special authorities were set up to monitor the compliance to the obliga­tions and commitments made in the engagements at the time of accession. A new phase of the relations between the Council and the new Members States started. The examination of the individual constitutional and legislative drafts prepared by the competent national authorities took the place of the monitoring and appreciation of the overall constitutional situations of the concerned states. The piecemeal implementation of the obligations of the membership was at stake in view of the adoption of the necessary constitutional and legis­lative reforms. In this phase, the Venice Commission had a relevant role, as described in chapter one. At this stage, an understanding of the machinery of the conditionality may be facilitated if we focus on the admission of new Member States to the EU.

III.