Introduction
The primary purpose of this book is to provide an analytical summary of the Venice Commission’s activity in the field of constitutional law. The European Commission for Democracy through Law, established by a partial agreement within the framework of the Council of Europe in 1990, is nicknamed the ‘Venice Commission’ since it holds its quarterly meetings in Venice, Italy.
The Commission’s primary function is to provide constitutional assistance to the bodies of the Council of Europe and to the Member States of the European Union. The Venice Commission is a technical body whose members are appointed one from each Member State and work in their personal capacity without a mandate. The activity of the Commission was recently criticised for having ‘often displayed an unsettling degree of militancy’.1 This book tries to contest this position and to show that the Commission’s Opinions are the result of a process of legal reasoning. The steps of this process are illustrated by the chapters of the book, connected by a common fil rouge.The first chapter provides an analysis of the first 10 years of the Venice Commission’s activity. Accordingly, this chapter presents an insight into the making of the role of the Commission that is the first step of the process of legal reasoning we are dealing with. An illustration of cases dealt with by the Commission is preferred to an abstract and formal analysis of the functions of the body. The history and activity of the Commission were largely conditioned by the fall of the Berlin Wall and by the dissolutions of the Warsaw Pact, the Soviet Union and the Yugoslavian Federation. Practical experiences profoundly shaped the actual identity and mandate of the body. Therefore, the first chapter commences by examining the central role played by the Venice Commission in the monitoring of constitutional reforms in the new Central and Eastern European democracies.
The exercise of the advising and monitoring functions required the identification of the yardsticks to be applied in dealing with the cases submitted to the attention of the Commission. For instance, the elaboration of guidelines and standards was necessary to suggest the possible alternative models of the systems of government of the concerned states, of the mutual relations between their governing bodies and of the relevant functions of these bodies. The Commission saw the convenience of such an approach when it organised, in cooperation with the University of Lund, a seminar about the initial 10 years of its activity. The reports submitted by many scholars on that occasion focused on the developments of the Commission’s Opinions. All of those reports paid special attention to the identification by the Commission of necessary specific yardsticks to be applied in the exercise of the advising and monitoring functions. [1] The basis for this construction is in the concept of a European constitutional heritage. D Rousseau provided an important contribution on the topic in a report submitted at another seminar of the Commission.[2] Two main sources of the heritage were identified by the Lund rapporteurs: (i) the case law of the European judges and related legal literature; and (ii) the constitutional traditions and principles of the European constitutions. On this basis, the European constitutional heritage was a consolidated point of reference that could be generally accepted in the practice of the Commission. At the very beginning of the activity of this body, transnational actors were only in the position of perceiving the necessity of organising materials emerging from the European constitutional tradition, in view of their practical utilisation. A lot of work had to be done to identify the principles and standards to be applied to the cases that were continuously submitted to the attention of the Venice Commission.The next step of the process (chapters two and three) I am describing regards the legal relevance of the adopted yardsticks.
The effects of their practical utilisation depended in the nineties on the functioning of the strategy of conditionality within the framework of the Council of Europe. The compliance with the principles and values of the European tradition of constitutionalism conditions and governs accession and continuous membership to the Council. Therefore, the observance of those yardsticks is the main purpose of conditionality. Consequently, conditionality has a legal relevance as far as it is the basis of operational doctrines of European principles and of the relative activities of the advising and monitoring bodies. Day-to-day principles and standards were derived from the European constitutional heritage, whose content acquired a true normative nature. This is the road towards the formation of a transnational constitutional law binding both the states and the supranational monitoring and advisory bodies. Two different approaches to the monitoring activity have to be considered. In the first years of the transition of the ex-communist countries to liberal democratic values, the adhesion of those countries to the Council of Europe was at stake. Attention was paid to the political engagements of those states to implement the European constitutional values in practice and through future reforms. It was an evaluation that pertained to the political governing bodies of the Council of Europe. Technical profiles of the monitoring activity regarded the modalities of the compliance of the concerned states with the identified yardsticks. The understanding of these yardsticks could be facilitated by the utilisation of the concept of the living constitution.[3] There was cause to involve the Venice Commission, since the beginning of the constitutional transition occurred alongside the prevailing political evaluation of the Parliamentary Assembly and the Council of Ministers of the Council of Europe. The involvement of the Commission acquired new importance at the moment of the accession of new Member States to the European Union, because of the increasing technical dimension to ascertaining the actual compliance with the European parameters by the new Members in drafting the required constitutional and ordinary legislations. The piecemeal scrutiny of constitutional legislations and drafts took centre stage in this part of the process. In the new century, the activity of the Commission has progressively enlarged the scope of its monitoring, resulting in partially covering the relations between the European Union and its Member States. Within this frame, the recent phenomenon of constitutional backsliding opens the debate on the strategy of conditionality again.The analysis of the legal reasoning that supports the Venice Commission requires the identification of the materials used in the monitoring process. Herein, the question arises: is the concept of the European constitutional heritage the expression of common European experiences? The research takes into consideration the different experiences of the Western European countries and their Central European counterparts. The distinction between them, far from being the mere result of academic speculation on the cases considered in the monitoring activity, has historical roots. The Venice Commission was confronted with the inclusion of the Central European countries in supranational institutions that were created and controlled by Western countries following the Second World War. The European constitutional heritage appears to be the result of Western European experience. The tradition and history of Central and Eastern Europe are missing a continuous conformity to the constitutional values. They reveal a different attitude to the state's problems, not only in the twentieth century and during the Soviet hegemony, but also before that. Therefore, it was difficult to consider the Central and Eastern European experiences as a part of the liberal democratic European patrimony. An example is the Hungarian Bulla Aurea, whose history is very different from that of the Magna Carta in the UK. Similarly, the 1791 Polish Constitution was not directly implemented and cannot be seen as a constructive stone for the formation of the European constitutional traditions.
The presence of some old constitutional provisions on paper that looked interesting is not sufficient to establish the continuity of a tradition if those provisions were not applied in practice. Analogous conclusions can be drawn, for example, with regard to the old Lithuanian customs. Jarasiunas correctly summarised these developments, underlining the peripheral character of these experiences with respect to other parts of the European constitutional civilisation.[4]The central chapters of this book focus on the analysis of the described system in action. Chapter four analyses some recent developments in European constitutionalism from the point of view of the Venice Commission's activity. Thus, the chapter provides an overview of the transition from the generic, overall concept of European constitutional heritage to the more specific and detailed principles of international constitutional law. It offers elements useful to the knowledge of the experience of the concretisation of the European constitutional heritage, which has only recently acquired large resonance. The description of that transition has to be supported by a further elaboration of the concept of international/trans- national constitutional law and by examples of cases settled through the contribution of the Opinions of the Commission. This analysis will be integrated by the concluding chapters, where attention will be paid to recent constitutional backslidings. The reactions of the monitoring institutions to the violation of the relevant obligations accepted by the Member States at the moment of their accession to the European Union will be examined.[5]
The identification of the constitutive elements of the transnational constitutional law requires a review of the relevant sources and materials. The Western European ascendancy of those elements is testified by the number of constitutional documents quoted in the Opinions of the Venice Commission and in the acts of the other supranational advisory and monitoring bodies.
These documents and acts are the basis of the interpretative legal reasoning that opens the way to the new epiphany of the constitutionalism. In addition, an important influence from the ‘we the people' American experience is present in the developments we are studying. The European sources, and the American ones, are not only contemporary; some date back to the eighteenth and nineteenth centuries. This implies that the operational construction of the relevant yardstick draws inspiration from: (i) the living constitutions of the relevant Western states during more than two centuries; and (ii) the identification of the political and cultural backgrounds of the law in force throughout those years. Attention has also been paid to the safeguarding of human rights and fundamental freedoms in the international documents. Notwithstanding that the evolution of transnational law has departed from the background of international treaties,[6] the judicial and monitoring practices have considered those documents as constitutive parts of the European constitutional heritage. They are the legitimising bases of the activities of the monitoring and advising bodies - and, therefore, of the formation of international constitutional law. The geographical spectrum of the analysis is completed by the presentation of some examples of the diversity of Central and Eastern European constitutional experiences. Finally, special attention is given to the judicial aspects of the rule of law, which was recently put at the centre of an EU initiative adopted with the help of the Venice Commission.The new European policy in the field of the rule of law justifies the attention given in the following two chapters (chapters six and seven) to the Opinions of the Venice Commission regarding judiciary and constitutional justice in Europe. The intention of these chapters is to ascertain the consequences of this new policy for the advent of a common transnational constitutional order in Europe, taking into consideration the behaviour of the states that have not complied with the yardsticks elaborated by the European Union with the help of the Commission. Chapter seven explores possible models of an institutional guarantee of the independence of the judiciary. The preference of the Commission was accorded to the so-called Mediterranean model, which provides for the establishment of a superior judicial council the majority of whose members have to be elected by the judicial personnel. The commission drew specific principles and rules that are corollaries of this model and concern the separation of the state's powers, the independence of the judges from the Executive and the appointment of judges. Notwithstanding its preference for the Mediterranean model, the Venice Commission does not radically exclude the possibility of adopting an alternative model in which the Executive is entrusted with functions concerning the career of the judges. However, this solution is only possible in countries with an old constitutional tradition. In these cases, a strict observance of the principle of the rule of law and the safeguard of the personal right to judicial protection are guaranteed. In recent times, Poland and Hungary have contested the Venice Commission's ‘case law' and have adopted legislative measures that conflict with it. These initiatives affect the relationship between those countries and the governing bodies of the EU. Chapter eight is specifically devoted to the analysis of the political and legal consequences of conflicts between national and supranational institutions. It is convenient to compare the delaying reactions of the political authorities with the innovative position of the European judges in this matter.
The Venice Commission has been loyal to the Kelsenian model of judicial review of legislation.[7] On this basis, the Commission has construed principles and rules to guarantee the independence and autonomous functioning of constitutional courts. Some recent cases have offered the Commission an opportunity to confirm its guidelines with the adoption of constitutional reforms by some states. Again, Hungary and Poland have adopted constitutional and legislative amendments that violate the common European constitutional traditions. It is evident that these interventions are aimed at settling possible tensions between elected assemblies and constitutional courts by modifying the normative status of courts. The interferences in the composition of these bodies were of great relevance, as they showed many novelties. We can count among them political behaviours that affected the actual duration of the mandate of the judges and their choice; the new regulations of the judiciary; and the organisation of the judicial review of legislation. Important Opinions have signalled that these interventions were unconstitutional intrusions into the functioning of the constitutional courts. These dangerous effects would only have been avoided in a fair way if the relevant constitutions had provided for one of the arrangements Mark Tushnet includes among the concept of ‘weak judicial review' in contraposition to the ‘strong' one.[8]
On one occasion, the Commission admitted the possibility of guaranteeing the superiority of the Constitution in a legal system without the establishment of a constitutional court. It was conceded that in Finland the respect of the Constitution was guaranteed by the uniform conformity of the ordinary judges with the declaration of unconstitutionality of a statute adopted by the highest judicial authority - that is, the Court of Cassation.
The purpose chapter eight is to summarise the process of legal reasoning that is at the base of a peculiar phenomenon of international law-making from the point of view of the Venice Commission. Since the inauguration of the monitoring and advising activities of the Commission, attention has been paid to the development of that role in the frame of the principle of conditionality. Conditionality requires the identification of a yardstick of the monitoring of the compliance with the commitments made by the concerned states. This yardstick was identified in the European constitutional heritage. It was a choice that had to be implemented through a constructive process, to be drawn from the statement of very general constitutional principles, leading to the construction of the more detailed principles and rules to settle the cases at stake. Relevant sources and materials have been identified by looking at the history of Western constitutionalism in particular. The conclusions of the process of legal reasoning were shared by the governing bodies of the Council of Europe and of the EU, and were also accepted by the European judges. Gradually, these successive steps induced the formation of international constitutional law through the cooperation of the authorities concerned. It is possible to envisage some similarities with the formation of law in a customary modality (or of the judicial case law).
In recent times, reasoning has been concentrated on the implementation of the rule of law. This development is due to a new policy of the EU. The European political initiatives were strictly connected with the recent backsliding of European constitutionalism. The epiphany of the so-called illiberal democracies has put in danger the geographical extension of the described results. Some Central and Eastern European states have recently distanced themselves from Western Europe. These developments were supported by the concerned states relying on the protection of their constitutional identity. Thus, the questions arise: (i) how far can the divergence from the principles of European constitutionalism extend in the name of national identity; and (ii) are we in presence of interpretative transformations of traditional constitutionalism or are we facing new alternative tendencies? A useful approach may be offered by the combination of the hermeneutic concepts of transformation and interpretation of the constitutional orders. The safeguarding of the constitutional identity of those states cannot be seen as a justified return to previous constitutional traditions if these traditions are clearly in conflict with the contemporary European constitutionalism. This is especially true if we examine the histories of Poland, Hungary and Romania. In these countries, the previous continuity of a true constitutional heritage is missing because the communist regime had substituted for the authoritarian or corporative state's constitutional orders. The histories do not offer a point of reference for going back to a coherent admissible constitutional identity.
At the beginning of the activity of the Venice Commission, a proposal was made to qualify its activity as soft law and to separate it from hard law. Taking into consideration recent developments, it does make sense to consider the possible coexistence of hard and soft law. A choice between the two approaches depends on the exigencies and characteristics of the cases at stake. It is useful to distinguish the principles from the standards of transnational law. While principles can require strict compliance,[9] standards allow some elasticity in the practical implementation of those values. Nevertheless, it is possible to prefer soft law only as far as there is no danger to the unity and cohesion of the European institutions. Useful suggestions can be drawn from the recent ‘revolutionary' case law of the European Court of Justice,[10] which has reacted effectively to the Hungarian and Polish backslidings. Thus, the judges compensated for the political difficulties encountered by the Article 7 TEU. In the meantime, they confirmed the legal status of the new international constitutional law. The place of this result in the process of globalisation can be debated, but the activity of the Venice Commission shall be considered in the European frame to avoid misunderstandings and misconceptions.
The book is completed by two appendixes. The first appendix presents a paper prepared by Sergio Bartole for a seminar organised by the Council of Europe entitled ‘The International Legal Order in a Changing World: Challenges for the Monitoring Procedure of the Parliamentary Assembly', Helsinki, 16 May. The paper offers an overview of the developments of the relations between the Venice Commission and the Parliamentary Assembly of the Council of Europe. The bodies of the Assembly frequently request the intervention of the Commission by submitting questions about relevant pieces of legislation adopted or under discussion in the Member States. This move is an alternative to the monitoring process requested by the Member States looking for advice. It is justified by the peculiar position of the Commission in the order of the Council of Europe and by the strategy of conditionality. Conformity with the European constitutional values is required both at the moment of accession to the European Institutions and during the continuity of membership. The strategy of conditionality has to be interpreted not as a downgrading of the sovereignty of the states concerned, but as a peculiar and valuable improvement of their identity due to accession.
The second appendix deals with a general problem whose interest is not limited to the Venice Commission, and tries to emphasise the persisting utility of the studies in the field of comparative constitutional law studies following the epiphany of international constitutional law. It is a reprint of an article11 written as a follow-up to an intervention of Mark Tushnet[11] [12] that argued a hypothetic diminishing relevance of the traditional boundaries of comparative law as a scholarly field. The appendix reacts to these conclusions, suggesting that the global and European points of view may be different. An explanation of the difficulties envisaged by Tushnet can be found in the different geographic extension of European transnational law with regard to the universal developments of the globalisation of law that Tushnet has in mind. The pluralism of the European system (see the contributions of MacCormick, Walker, Maduro etc) requires us to focus on the common constitutional elements of the European states. Therefore, the comparative constitutional law appears to be an indispensable tool for the creation of transnational law at the European level.