NATIONAL CONSTITUTIONS AND THE IDEA OF A EUROPEAN CONSTITUTION

The limits to integration came to be tested once again in the process of ratification of the Treaty Establishing a Constitution for Europe, which was subsequently replaced by the less ambitious Lisbon Treaty.

One of the central elements in the German Constitutional Court’s above-discussed Maastricht decision had been the idea that the EU is not a state, because of the absence of a constitutional document in the EU, with the EU treaties being by nature international treaties and the Member States retaining the status of the “Masters of the Treaties.” This idea naturally prompted questions about the adoption of a document that was entitled the Treaty Establishing a Constitution for Europe: in the discourse on whether the EU still remains a confederation of states or whether it might be heading towards a federal future, the absence of a fully fledged constitution has been regarded as a key argument against the latter scenario. Traditionally, constitutions have been regarded as the founding and supreme instruments governing the exercise of powers in sovereign nation-states, and there has been a deeply entrenched understanding within the national constitutional doctrine that the notion of a constitution is inherently bound to a state. The process of ratification of the European Constitutional Treaty offered an interesting case study of how national constitutional law and doctrine accommodated the potential co-existence of two documents bearing the name constitution.

In the aftermath of the Maastricht decision, an important line of literature emerged that could be labelled as a post-national or “post-etatist”⁵³ approach to constitutionalism.

In the framework of a collaborative project,⁶⁰ I sought to assess whether the ratification process of the European Constitutional Treaty triggered a revision of the traditional thinking in the national constitutional doctrine, in line with recent European theories such as post-national, multi-level, or intertwined constitutionalism. Whilst these theories are mainly represented by what could broadly be classified as “EU-lawyers,” the question for the project was to explore to what extent such theories have made inroads in the national constitutional thinking. To this end, the contributors were asked to consider the debates and official documents of the political institutions that were involved in the ratification process in the Member States, as well as constitutional court decisions and scholarly discourse at the national level.

The study showed that despite the original denomination of the document as a “constitution,” the various national institutions that were involved in the ratification process approached the Treaty Establishing a Constitution for Europe as yet another international treaty. This view was taken, for instance, by the French and the Spanish Constitutional Courts in their decisions on the Constitutional Treaty, as well as by the Finnish Parliament’s Constitutional Law Committee, Belgium’s Council of State, and Estonia’s Working Group of legal experts. The main arguments in classifying the Treaty Establishing a Constitution for Europe as a treaty rather than as a constitution were encapsulated in the decision of the French Conseil Constitutionnel. It stated that the Treaty Establishing a Constitution for Europe was an international treaty because it did not change the nature of the Union or the character of the treaty as an international treaty. This was because of the treaty’s provisions on entry into force and amendment, the reference in (the then) Article I-5 to the respect for national identities inherent in the Member States’ political and constitutional structures, the system of attributed competences, and the fact that the French Constitution would have remained at the top of the French internal legal order.⁶¹ This approach also appeared to prevail elsewhere. Indeed in the Czech Republic the very idea of introducing a course entitled European Constitutional Law in the leading law faculty of the country was met with considerable resistance.⁶²

Overall, the above appears to illustrate that the traditional approach that links constitutions to states continues to be deeply rooted at the national level: the EU’s proposed constitutional treaty was viewed as an international treaty, since the EU’s nature would not have been changed in a “fundamental way”: i.e., the EU would not have been transformed into a state. In other words, a document that falls short of transforming an entity into a state cannot amount to a “constitution.” Whilst an increasing number of commentators have, since the Maastricht decision, lamented the application of the nineteenth-century constitutional concepts to the globalizing and interdependent world of the twenty-first century, application of such concepts appears to persist in the national constitutional doctrines.

In relation to the last observation, it is interesting to note a fundamental change in the approach to the concept of sovereignty displayed by the Czech Constitutional Court in its 2008 judgment on the constitutionality of the Lisbon Treaty.⁶³ The Czech Constitutional Court extensively explored the process of globalization and the relevant literature. It concluded that “in a modern, democratic, law-based state, state sovereignty is not an aim in and of itself, in isolation, but is a means to fulfilling the above-mentioned fundamental values, on which the construction of a constitutional, law-based state stands.”⁶⁴ To this end, the Czech Court explored a wealth of literature on globalization and stated the following: “International co-operation and coordination of national policies has become an essential requirement for managing the globalization of the world. For the first time in history, national security, which was always the core of statehood, can be effectively ensured only by sovereign states acting in concert, unifying resources, technologies, communication and information flows, power, and authority.”⁶⁵ It noted “a spontaneous, undirected process of increasing intensive integration of the world’s countries in a single economic system. This process, with contributions from the key communication technologies of the mass media, internet, and television, subsequently influences relationships outside and inside individual states in the areas of politics, culture, social psychology and others, including the area of law.”⁶⁶ Based on the above, the Czech Court reached a conclusion that may well signal a profound change in the national constitutional doctrine towards the concept of sovereignty: the Court found that the Member States’ sovereignty is ultimately strengthened vis-à-vis the external geopolitical and economic factors and newly emerging superpowers.⁶⁷