INTRODUCTION
The European Union (EU) is not a federal state. Indeed, any aspirations that may have been harboured to this end in some parts of Europe in line with the visions of Altiero Spinelli, Walter Hallstein, and others were dealt a near-fatal blow by the fiasco of the ratification of the European Constitution.
Nonetheless, based on the distinction drawn between a “federation” and “federalism,” where the latter can exist without the former,1 it is widely accepted that the architecture of the EU contains numerous elements of federalism. According to Michael Burgess, in the European context “federalism is both a dynamic process and a goal to be attained. Indeed it has many faces: political idea, strategy, influence, process and goal.”2 A recent comprehensive study by Robert Schuetze assessing the European Union’s constitutional framework in the light of the American tradition of federalism suggests that the European Union can be defined as a federation of states, as it stands on the “middle ground” between international and national law.3 On the other hand, a comparison between the EU and Switzerland has led Clive Church and Paolo Dardanelli to suggest that the EU resembles more closely a Swiss confederal model dating back to the nineteenth century than a contemporary federal model, albeit with increasing pressures for centralization.4 Some have characterised the EU as a new form of federalism, such as “integrative federalism,”5 or a “supranational federation.”6 Others have offered new labels such as a “European Commonwealth.”7 In reality, the EU is perhaps still best characterized as a “supranational organization sui generis”: this expression has proved relatively uncontroversial in respect of national constitutional sensitivities, as well as capable of encompassing new developments in the integration process.It is well established that membership in the European Union involves the unprecedented transfer of sovereign powers on the part of the Member States, which goes well beyond the co-operation traditionally associated with international organizations. It is evocative that the European Court of Justice established already in 1986 that the treaties form a “Constitutional Charter,”8 a view that has been widely endorsed in scholarly writings, especially if one takes into account the successive deepening of integration by the treaties of Maastricht, Amsterdam, Nice, and Lisbon. The constitutional elements include the fact that the treaties determine the EU’s governing institutions, their powers and the corresponding system of checks and balances, and their relations with each other and with the Member States, as well as establishing the EU’s decision-making procedures that involve a directly elected parliament. Additionally, important constitutional principles have been developed by the European Court of Justice (ECJ), such as the supremacy and direct effect of EU law and the protection of fundamental rights. The creation of the Monetary Union and the Schengen borderless area, as well as the introduction of the concept of EU citizenship, has been regarded as significant from the point of view of the sovereignty of the member states. Overall, legal scholars and especially scholars who study federalism have noted that in some respects the EU may well have seen more centralizing tendencies than many federal states, where federalism indicates greater autonomy for the constituent units.
This naturally prompts the question how national constitutions of the EU Member States have been adjusted in relation to the transfer of powers. Indeed, national constitutions have traditionally been regarded as the foundational and supreme instruments governing the distribution and exercise of powers in sovereign nation-states. This chapter provides an outline of the state of play on the landscape of EU-related constitutional amendments in the various Member States.
One issue that has emerged from the literature is that approximately half the Member States’ constitutions are rather poorly adjusted for EU membership, especially in terms of reflecting the extent of powers exercised at the supranational level. This chapter explores why this has come to be the case and considers some broader reasons why it might be important for constitutions to be brought up to date with regard to the ramifications of EU membership. It will also consider areas where national constitutions have served as a catalyst for change at the EU level.Generally, citizens of federal polities focus their attention on the federal (national) constitution and are unaware of the constitutional arrangements of the constituent polities, because sub-national constitutions are not immediately visible to them. This chapter shows that in the EU context, the opposite could be said to hold true, in that national constitutions of the Member States remain the primary and focal point of reference for citizens, with little understanding of, and support for, the European constitution as it exists in an unwritten form or the written European Constitution that failed at the referendums.