International Constitutional Law: Principles, Norms or Standards?
The contribution of the Venice Commission is appreciated by political authorities not only with regard to its fact-findings missions concerning the cases at stake, but also in consideration of its identification of the principles whose observance is required.
The prima facie evaluations made by the Commission are very important in helping the work of political authorities, and especially of the European judges. Both the Venice Commission and the European judges deal with specific individual cases that require identification of the detailed rules that are to be directly applied. The Commission provides for the applicable law by extracting it from European constitutional principles and adapting those principles to the given cases at hand. Therefore, we cannot contest that we are in the presence of a true expression of law. The Opinion of the Commission binds the concerned states insofar as it is adopted by the political monitoring bodies. Through the reiteration of its application, the interpretation of the Commission can acquire general relevance and may become part of transnational constitutional law. This final result is frequently shared by the ECJ as consolidated law. This is an obvious consequence of the fact that the Venice Commission deals with the identification of the rules that have to be applied in the individual cases, identification which also interests the judgments of the Court.Some authors have tried to downgrade the legal status of the parameters referred to by the Venice Commission. These authors proposed to qualify these yardsticks as mere standards or guidelines concerning the modalities of the application of the European constitutional principles. Other authors have preferred the classification of those results as soft law.[359] Both of these viewpoints do not take into consideration the role of the Venice Commission’s Opinions with regard to the states' admission to, and their continuous membership of, the Council of Europe and the EU.
The strategy of conditionality - as far as it is implemented - has a concrete impact on those relations through the detailed concretisation of the European constitutional heritage in accordance with the interpretations of the Commission. In fact, the contribution of the reiterated observance of its precedents by the Commission avoids the day-to-day application of parameters that has been denounced.[360] This conclusion does not mean that the Commission’s Opinions cannot sometimes be read with a degree of flexibility. The difficulty of distinguishing the constitutional principles and their practical operationalisation has been correctly underlined in the legal literature. Principles remain at a ‘too high level of abstraction’ if they are not considered in connection with the practical modalities of their implementation.[361] Nevertheless, it would be advisable to avoid a strict division between soft law and hard law. This distinction has a long history,[362] but even the legal positivists do not deny the integrating utility of soft law. Soft law is an instrument ‘whose only rational[e] is to serve as a stepping stone to hard law’,[363] because it is an important factor in view of the integration and, therefore, of the implementation of hard law.[364]The recent developments in European monitoring activity emphasise the importance of the rule of law among all the European values and principles. Many of the conflicts that have been mentioned in this chapter regard the organisation of the judiciary and of the judicial review of legislation in European states. The content of the principle of rule of law was largely integrated by the contribution of the monitoring bodies and by the case law of the European judges. The rule of law is explicitly mentioned in fundamental documents of the Council of Europe and the EU. However, the meaning of the concept had to be determined through construction and interpretation.
Many documents of European authorities identify the operational application of the rule of law, solemnly defined as ‘the backbone of any modern democracy’.[365] The experience of the Venice Commission has been a pillar of the initiative of the Commission and of the European Parliament. The Commission’s activities collaborated in designing a new and special policy aimed at strengthening the rule of law in the frame of the Union. A great contribution has been given by two of the Commission’s documents in particular: the ‘Report on the Rule of Law’ and the ‘Rule of Law Checklist’[366] The Report drew inspiration from a resolution of the Parliamentary Assembly of the Council of Europe[367] and aimed ‘to identify a consensual definition of the rule of law’ The Checklist intended ‘to provide a tool for assessing the Rule of Law in a given country from the viewpoint of its constitutional and legal structures’ Both the documents have established a productive link between the activity of the Council of Europe and the policies of the EU. They offered the concerned supranational authorities elements to integrate and complete the yardstick of the public activities. The strict interconnection between hard law and soft law is especially present in this field, and in particular concerns the exercise of all the states’ judicial functions.The interest devoted by those institutions to the organisation of the judiciary and of the judicial review of legislation can also be explained by the important role played by the judges and constitutional courts in safeguarding human rights and fundamental freedoms. The regulation of states’ judges and constitutional justice is not among the legal areas transferred to the competence of the EU. However, judges and judicial review provide the necessary ‘remedies sufficient to ensure effective legal protection in the fields covered by Union law’ (Article 19(1) TEU). Therefore, the involvement of the ECJ in the evaluation of the conformity of the behaviour of the Member States to the identified content of the rule of law is an essential part of the functioning of the overall European constitutional system.[368] The compliance with the rule of law implies, as a consequence, the independence of both ordinary and constitutional judges.
Both principles concern aspects of the interpretation and application of the European Treaties. The judicial protection of the rights guaranteed by the EU, the functioning of the preliminary ruling and the correct developments of the judicial relations concerning the European criminal mandate deserve mention.The practice of the EU signals that its constitutional doctrines assign a primary position to the rule of law. This principle is conceived as an essential component of the constitutional orders of the Member States. Thus, the concept of the rule of law is inclusive of the main principles of modern constitutionalism and incorporates them. The subjection of the state administration to the law, the requirement of the law to limit personal rights, the role of the law in regulating private relations and the independence of the judiciary are all important aspects of the rule of law. Quoting, inter alia, the documents of the Venice Commission, the European Parliament[369] has stated that EU institutions and bodies as well as the Member States
should... move towards a shared culture of the rule of law as universal value... to be applied by all concerned even-handedly, while the full respect and promotion of those principles is the essential prerequisite for the legitimacy of the European project as a whole and the basic condition for building the citizens' trust in the Union.
If we take into consideration the described process of identification of the principles of the European constitutional heritage and of the rule of law, we could ask whether we are in the presence of a constitutional law without a constitution. This was the objection advanced by a number of authors who have regretted the compression of states’ sovereignty emerging as a consequence of the monitoring strategy based on the mechanism of conditionality.[370] The objection could also be read as an admonishment of the possible accession to the EU of new Member States (western Balkans) and the progressively more frequent appeal for respect of the identity of the states concerned.
However, it must be borne in mind that the expansion of the supranational constitutional law derives from the voluntary accession of the states to the EU and to the Council of Europe. These moves were based on the acceptance of the values identified in Article 2 TEU. Therefore, the machinery of the constitutional monitoring is not the result of any external imposition, but is required by the engagements that have bound the states from the moment of their accession and still bind them in view of the continuity of their membership. The epiphany of ‘partial’ or ‘parallel’ constitutions was already signalled more than 10 years ago by a seminal contribution which underlined that ‘parallel constitutions exert a constitutionalising impact on the domestic constitutional order’.[371] The phenomenon is not exceptional, but is connected with the spreading of world constitutionalism and implies different strategies to legitimise the use of constitutional language and terminology. ‘Constitution’ may mean not only a formal document adopted by a constituent assembly, but also a basic complex of principles and values concerning the specific matters usually covered by formal national constitutions. As different developments are involved, so too may there be different actors of constitutionalism. Therefore, a limitation of the states’ sovereignty is possible alongside the expansion of the powers of supranational institutions. We are faced with the consequences of international agreements and engagements. Taking care of the implementation of these agreements and engagements should be the task of the political authorities of those supranational institutions. However, experience shows that the supranational political authorities are not always able to comply with their mandate without the advice and support of the competent monitoring bodies (for instance, the Venice Commission). In that case, a corrective intervention of the competent European judges is necessary and justified. They are the guarantors of the compliance with the basic engagements subscribed by the Member States. Therefore, the critical evaluation of the ‘modernist’ imagery of the judges ‘as the vehicles of an optimistic narrative of progress and equality’[372] cannot be shared. The role of the judges in the present situation of European transnational order is better described by those authors who have described the European judiciary as the ‘last soldier standing’.[373]Furthermore, we have seen that the identification of the European constitutional principles is not the result of an invention of the monitoring institutions but derives from the elaboration of the main principles of the European constitutions. We are not faced with a political process of constitutional lawmaking; rather, the decision-making is supported by processes of legal reasoning. The monitoring institutions have moved from the basic elements of European constitutionalism and are engaged in a progressive deduction of detailed rules derived from those basic elements.
V.