REASONS BEHIND THE VARIABLE STANDARDS OF CONSTITUTIONAL REVISION
The general picture emerging from the preceding section is that a considerable proportion of the constitutions of the Member States would appear to be ill-equipped in addressing the ramifications of EU membership.
As Monica Claes has noted, “the way in which European integration is dealt with in the constitutional texts is often disappointing, often inconsistent, at times downright clumsy… and in many cases underdeveloped.”24 She notes thatIn most Member States there does not seem to be a consistent policy of cleaning up the Constitution and adapting it to a changing environment. Many Constitutions contain provisions which must to say the least be read in perspective, others are simply no longer in conformity with the changed realities of membership… [M] ost Member States approach the problem on an ad hoc basis, adapting the Constitution from time to time, but not consistently and in a rather disorganised manner.25
These observations prompt an inquiry into the reasons that may have shaped the current situation. Four factors appear to have played a role to this end.
The first concerns various country-specific factors that have shaped the EU-related constitutional framework in a number of cases. For example, with regard to the Benelux countries, it has been commented that the constitutional provisions on international organizations were adopted during the 1950s to the 1970s with a view to EU membership, and amendment has not been on the agenda because these countries have traditionally been European-integration friendly, with no constitutional conflicts having emerged. This has also largely been the case with Italy, whose integration provision was introduced with a view to joining the United Nations, having later also been applied in respect of EU membership. Italy had, in fact, embarked in the second half of the nineties on a major constitutional revision, which would also have introduced EU provisions, but the whole plan collapsed in 1998 for political reasons.26 Eventually, a provision on regions in the context of EU law was adopted in 2001.
Luxembourg’s clause on “temporary” transfer of sovereignty (article 49bis) has been explained by the small size of the population, and the resulting paucity of legal discussion. In Spain, the Constitution has seen virtually no amendment for thirty years, since its adoption, since considerable value has been placed on the stability of the Constitution and, additionally, political forces have failed to reach a consensus.27Second, there appears to be an interesting correlation in that most constitutions that lack a specific provision on the transfer of powers to the EU are subject to more difficult amendment procedures. Such procedures may involve the dissolution of parliament, approval by two consecutive parliaments, or a referendum. The parliament has to be dissolved in Belgium, in Luxembourg, and, when amending the fundamental provisions, in Spain, where additionally a referendum is required. The approval of two parliament memberships is required in Greece (note the relatively late introduction of EU amendments in 2001), the Netherlands, and Finland. In Finland, urgent amendments may additionally be adopted by a 5/6 majority of the parliament membership. In Denmark, a referendum or a 5/6 majority of parliament membership is required for amendments. Another amendment-related factor plays a role in Finland and the Netherlands, where treaties that conflict with the Constitution may be approved by parliament by a special majority. Amongst the new Member States, a referendum is required for sovereignty-related amendments in Estonia, Latvia, and Lithuania and for all amendments in Romania, and the possibility of holding a referendum is envisaged in Poland and Slovenia.
The procedural difficulties are compounded by the fact that issues surrounding delegation of sovereignty invariably tend to fuel the outcries of eurosceptics, which makes the more politically attuned parliament members and legal experts seek solutions that would be less prone to generate public controversy.
As Monica Claes has noted, even where the need for amendments is acknowledged, the complexity and the length of the procedure often leads to postponement of the actual amendment until a later, more convenient time, for instance, after a general election or in order to profit from experiences gained.28 The above trends seem to be broadly in line with a theory proposed by Donald Lutz, whose studies have demonstrated that the degree of rigidity of a constitution affects the amendment rate.29 Eivind Smith has pointed out that it is typical in the case of those constitutions that are very hard to amend (e.g., the constitutions of the United States and Denmark) to engage in “a creative interpretation.”30The third reason for the at times poor record of amendment of national constitutions with regard to EU matters may lie in a deliberate quest to leave the issues related to delegation of sovereignty untouched. Amendment proposals have often met the objection of “don’t fix it if it ain’t broken”; that is, on the whole the existing provisions on international organizations have not obstructed EU integration, and thus no immediate need has arisen for meddling with the constitutional texts. Andras Sajo has noted that some countries may have used the strategy of what Stephen Holmes called the gag rules; that is, they may have made a strategic decision to remain silent on a particular issue, for the reason that it was still unclear how the European system was going to develop.31 Overall one might perhaps draw parallels here with Steven Krasner’s characterization of sovereignty as “organised hypocrisy”:32 constitutions could perhaps be regarded as a form of “organised hypocrisy” given the increasingly reduced relevance of the provisions on the national exercise of powers in relation to the realities of Europeanization and the globalization of governance. Constitutions are typically amended, though, where a domestic change in the distribution of powers occurs.
The “hypocrisy” element thus concerns only the external dimension of governance.The fourth reason may lie in the fact that constitutional lawyers, who often work in a domestic framework of reference, simply fail to understand the constitutional significance of the EU. Andras Jakab, in an article evocatively entitled “Neutralizing the Sovereignty Question,” has noted that “dominant views in the member states’ constitutional doctrines ignore the actual challenge of the European Union to national sovereignty and by some kind of self-deception believe that (almost) nothing has changed.”33
The ratification of the European Constitutional Treaty, which was subsequently replaced by the less ambitious Lisbon Treaty, offered a striking case in point in terms of demonstrating the reluctance to amend national constitutions. Of the twenty-five Member States at the time, France was the only country to amend its Constitution in view of the ratification of the treaty. It did so as a result of the Conseil Constitutionnel’s decision in which certain further encroachments were identified on the “essential conditions of the exercise of national sovereignty.”34 Whilst the issue of amendment was considered in some other countries, the relevant institutions (e.g., the Constitutional Court in Spain, the expert committee in Estonia, and the Parliamentary Committee in Finland) found no need for any textual amendment. However, in Finland a special procedure of “exceptive amendment” was deployed, which enables parliamentary ratification of the treaties that conflict with the Constitution. In only one of the Member States can the amendment be seen as disappointing, since it is hardly conducive to the evolution of a true multi-level or intertwined constitutionalism or a “European constitutional order,”35 where national constitutions would constitute equal and credible building blocks alongside the EU treaties.
Whilst the shortcomings in the adaptation of the constitutions are a matter of national discretion and will trigger no sanctions on the part of the EU, the EU amendments may well have important ramifications for the Member States’ internal legal systems, as well as for the broader constitutional and judicial debates in Europe.
One concern that has come to be highlighted by scholars is the issue of the devaluation of constitutions: are constitutions still taken seriously, or have they perhaps in part been reduced to paper tigers? Bruno De Witte coined the expression “European deficit” in the national constitutions, pointing to the fact that constitutions might gradually be becoming somewhat obsolete with regard to the realities in the exercise of powers.36 In a similar vein, Andras Sajo has noted that “too many gag rules will lessen the constitution’s functionality and undermine its social relevance.”37 In Denmark, where the Constitution still contains no explicit mention of the EU and the courts rarely exercise constitutional review, Hjalte Rasmussen has noted a trend towards “waning constitutionalism” and “constitutional amorphousness.”38 With regard to such constitutions, Monica Claes has rightly noted that “the least that can be said is that these States may not be taking their own Constitution seriously, and that they… [may] not do justice to the functions of a constitutional document… To omit the EU and the State’s participation in it from the national Constitution can even be considered a devaluation of the national Constitution, and expression of carelessness as regards the supposed most fundamental norm of the polity.”39In terms of the scope of constitutional amendments, it ought to be borne in mind that constitutions in general have been classified into two main types – “historic” and “revolutionary” (Leonard Besselink).40 The former, which include, for example, the British and Dutch Constitutions, have developed incrementally over a long period, being non-formalistic and at least as much political in nature as legal. By contrast, the latter group of constitutions, which include, for instance, those of Germany, Italy, France, and Ireland, tend to have originated in a political or social cataclysm, which forms the “moving myth” that inspires the Constitution.
These constitutions constitute the political reality and tend to have a distinctly legal character, being enforced by constitutional courts.41 The constitutions of Central and Eastern Europe belong in the second group: as a reaction to the Communist period marked by nihilism concerning constitutional rules, they have a distinctly legal character and are relatively lengthy and detailed, and their observance is rigorously policed by powerful constitutional courts, with a high ratio of annulment of legislative acts.42 Updating the constitutions with EU amendments is therefore likely to assume greater importance in the case of those countries whose constitutions are revolutionary in nature, if the constitutional culture is to be preserved.Another consideration in support of amending constitutions is that an inadequate constitutional framework may place an excessive burden on constitutional courts in adjudicating conflicts between national law and EU law. Such a framework may shift the courts’ framework of reference from the legal and constitutional requirements to considerations of political and European/international expediency. Courts, and in particular constitutional courts, may find themselves in a vexed situation, having to find pragmatic solutions in ensuring the constitutionality of the legislation without jeopardizing the supremacy of EU law. The discourse on the reception of the supremacy of EU law in national law has predominantly focused on “judicial dialogues”43 and “co-operative constitutionalism,”44 where the national courts and the ECJ have engaged in a structured conversation and cooperation in resolving issues pertaining to the relationship between EU law and national legal orders.45 Where the supremacy of EU law has been jeopardized or questioned in any way, the relevant courts have invariably been labelled as unfriendly or uncooperative. However, I have shown elsewhere that in a number of cases the constitutional courts have in fact been pragmatic and gone to great lengths to avoid clashes with EU law in their quest to find practical, EU-friendly solutions despite conflicts with the texts of the national constitutions that had not been adequately amended beforehand.46