OVERVIEW OF THE STATE OF PLAY IN THE EU: AMENDMENTS IN NATIONAL CONSTITUTIONS

The amendment of national constitutions in view of membership in the EU has been explored in detail by a number of authors, offering thorough accounts of the historical background, the content of the amendments, and comparative classifications.⁹ This chapter will confine its scope to providing a summary of the state of play that has emerged on the national constitutional landscape.

In the process of entry into the EU, it is incumbent on the accession countries to align their legislation to the requirements of the wide-ranging body of the acquis communautaire, under a careful scrutiny by the European Commission. There is, however, one important legal instrument that appears to be virtually exempt from the harmonization requirement: the national constitution. As a fundamental expression of state sovereignty, constitutions establish the foundational rules on the distribution of powers and decision making within a state, and states thus hold the prerogative of determining whether and to what extent participation in the EU receives a mention in the national constitution. The latest EU enlargements, however, offered some evidence of nascent inroads by the EU into national autonomy in determining the content of the constitutions, for example by virtue of the European Commission’s requests to amend constitutional provisions concerning the judiciary in Slovakia, Romania, and Bulgaria. However, the core constitutional provisions on the organization of powers and on their transfer to the EU remain firmly within the jurisdiction of the Member States.

In the absence of unified EU requirements, national constitutions represent an area of law that, intriguingly, appears to be rather modestly adjusted for EU membership. Among the constitutions of the fifteen “old” Member States,¹⁰ four offer no mention of the EU – the constitutions of the Netherlands, Luxembourg, Denmark, and Spain.

In the new Member States, the first round of EU amendments was predominantly introduced in 2001–3, with the exception of Poland, which joined on the basis of the new Constitution adopted in 1997, and Cyprus, where no amendment was deemed necessary prior to accession. As for the countries of Central and Eastern Europe (CEE) the historical background of the adoption of the constitutional amendments, along with the legal and political context, has been provided by the author elsewhere.¹⁸ The story of amendments contained a considerable element of drama. Solemn, heartfelt declarations on sovereignty and national identity in the constitutional texts, and the political rhetoric of the early 1990s quickly gave way to a transfer of state powers to what eurosceptics often likened to a European superstate. Any public perception of loss of sovereignty was warded off by a careful approach to the wording of the constitutional amendments and to the staging of referendums; constitutional arguments regarding the necessary content and procedure of amendment typically paled in significance in the face of (geo-) political imperatives.

Overall, the amendments that were adopted in CEE prior to EU accession broadly remained minimal.¹⁹ The amendments were predominantly addressed to international organizations in general rather than specifically to the European Union. Further, in a number of countries direct conflicts with EU law were left unresolved within the constitutions despite the advice of legal experts. In some countries (mainly the Baltic states) the amendments were enacted in a way that bypassed the rigid constitutional amendment procedures that had included the requirement to hold a referendum for amendments affecting sovereignty and independence.

In the subsequent years, however, the balance sheet saw a considerable change, with a number of further amendments having been adopted in the more relaxed political climate that followed the successful holding of the accession referendums.

While at the pre-accession stage, the model of extensive amendment had hardly resonated with the constitutional drafters of the accession countries, a rather different picture has emerged in result of the additional post-accession amendments and the entry of Romania and Bulgaria. Indeed, in constitutional terms many new Member States would now appear better prepared for EU membership than several older Member States. It may additionally be worthy of note that some countries are mooting further amendments or even the adoption of a new constitution. For example, Estonia has seen a lingering debate on the need to draft a new constitution that would have a distinct EU chapter, following the constitutional uncertainties that resulted from the adoption of a free-standing Constitutional Act on the EU that had been adopted as a political expediency to make EU accession possible.

Besides an assessment of the Member States, it ought to be noted that EU law has been adopted by a considerably wider range of countries beyond the European Union. The bulk of the EU single-market legislation and beyond is applicable and binding in the EEA countries of Norway, Iceland, and Lichtenstein, with Switzerland being bound by virtue of bilateral agreements with the EU. Croatia, Macedonia, and Turkey are adopting EU legislation by virtue of their status as candidate countries, and the various Western Balkan countries are in the process of harmonizing their legislation with EU law under the Stabilisation and Association Agreements.²⁰ While these groups of countries have either obtained membership or have at least vague membership prospects, a more intriguing case is the extension of the EU acquis communautaire to the European Neighbourhood Policy (ENP) countries, which enjoy no membership agenda in the foreseeable future. The European Neighbourhood Policy,²¹ created in 2004, bears considerable conceptual and technical similarities to the EU’s enlargement policy, drawing heavily on the methodologies developed within the framework of the EU pre-accession strategy.²² This phenomenon of exporting EU rules to non-member countries has come to be characterized as the EU’s “external governance.”²³ Yet at the same time, these countries typically have no special provisions that would legitimate the adoption of EU law in their countries.

By way of a tentative classification in terms of the extent to which constitutions reflect EU membership, the various member and non-member states could be divided as follows. A broader range of amendments have been put in place in Germany, France, Portugal, Austria, Ireland, Slovakia, Hungary, Bulgaria, Romania, Latvia (after October 2004), and Lithuania (after August 2004). Limited amendments have been introduced in Finland, Greece, Malta, Cyprus (after November 2006), Estonia, Poland, Belgium, Sweden, and Italy. The Czech Republic and Slovenia could also be placed in this category because their provisions use the wording “international organization,” rather than treating the EU as a special organization. Virtually no EU provisions exist in the national constitutions of the Netherlands, Luxembourg, Spain, and Denmark. This observation also concerns the EEA countries, candidate countries, and the European Neighbourhood Policy countries, which to a different degree are operating under the requirements of EU law.