The Conclusions of the Research
The previous chapters took into account the involvement of the Commission in the transition of Central and Eastern European countries to a democratic and liberal system of government.
This transition required basic constitutional choices that were made according to a conventional yardstick proposed by the fundamental documents of the Council of Europe and of the European Union. An important factor in these developments was the decision of the concerned states to become members of those institutions. Two elements were at the base of the interventions of the Commission, which is one of the bodies entrusted with the mandate of monitoring the accessions of the countries and the continuity of their memberships. On the one hand, the strategy of conditionality has inspired the exercise of the monitoring and advising functions by the Commission. On the other hand, this body was expected to base its choices on the concept of a European constitutional heritage and to draw inspiration, inter alia, from the case law of the European Courts.The diversity of the constitutions of European states[332] was considered to be an obstacle for the construction of a common yardstick for the exercise of monitoring and advising functions. However, the cultural history of European constitutionalism helped the search for a common field of understanding.[333] The original ideas of the European constitutional principles and values offered the conceptual basis for the elaboration of the modalities of constitutional transition in the post-communist European states. The experience of Western Europe was the starting point for the construction of the parameters of the activity of the legal and political actors. The recognition of the continuity of the choices made by the states traditionally linked to the developments of constitutionalism favoured the identification of the yardstick to be adopted in the cases at hand.
The exercise implied the choice between the preferred models of constitutional reforms. The bodies entrusted with the monitoring and advising functions were engaged in a true exercise of legal interpretation. The result has gone farther than the written text of the relevant law. However, it is not the result of a political choice, but of a functional approach to the legal construction.The Commission has had to deal with what HLA Hart would have defined as the ‘open texture'[334] of the written provisions and declarations of the concerned international treaties (see, for instance, the European Convention on Human Rights and the relevant case law of the European Court of Human Rights). In the case of the unwritten principles of European constitutionalism, even a written provision was missing. It is difficult to distinguish the formal legal materials and other materials that are taken into consideration in the process of the interpretation of the law. The materials that are at the base of the identification of the law to be applied in the legal practice also have legal relevance.[335] The vagueness of the written texts and of the unwritten principles had to be clarified by the legal and political actors. The relevant materials were offered by the constitutions of the European states and by supranational documents such as the Statute of the Council of Europe, the EU Treaties and the Copenhagen criteria.
The Commission's Opinions deal with individual cases. These Opinions are the results of the evaluation of the constitutional reforms of the candidate states and Member States that is made in the light of the described elaboration of the relevant yardsticks. Insofar as those documents concern specific and particular legislative acts, they have to envisage solutions covering detailed aspects of the institutions of the constitutional democracy. Therefore, they go beyond the basic principles that are their starting points. The legal theory of authors such as Hans Kelsen and Ota Weinberger agrees that detailed interpretative statements adopted with regard to the settlement of a single case are law, or better - notwithstanding that the expression may not look appropriate - the ‘law of the case’.[336] The conclusions adopted by the Commission for one case are frequently used to settle similar cases and obtain a general relevance.
The reiteration gives way to a phenomenon of customary lawmaking supported by an intellectual and voluntary factor, that is, the initial acceptance of those precedents as law. An interesting example of these developments is given by the collections (Reports or Compilations) of its precedents published by the Commission. Accordingly, the law elaborated by the Commission and applied by the competent monitoring political authorities becomes a component part of international constitutional law. This law is not the result of an inescapable supremacy, but is the product of a mutual dialogue between all the participants, for instance, in the process of progressive Europeanisation of the ex-communist countries. The Venice Commission, the governing bodies of the concerned supranational institutions and - possibly - even the European Court of Justice (ECJ) and the European Court of Human Rights take part in this interpretative process. These actors cooperate in the implementation of the European constitutional principles and in the elaboration of the modalities of this implementation. The Venice Commission does not have the exclusive paternity of those results; however, it certainly shares a great deal of the responsibility for their elaboration.The phenomenon has to be considered in the frame of the strategy of conditionality. It regards the position of all the Member States of the European supranational institutions, but especially concerns the course of the events that occurred after the fall of the Berlin Wall and the dissolution of the Soviet and Yugoslavian Federations. At that time, the ex-communist states looked for new international legitimacy and requested to be accepted as Member States of the Council of Europe and, successively, of the EU. Both requests implied the observance of constitutional principles and values whose compliance had to be monitored. The Venice Commission played an important role in the monitoring processes, but its interventions implied a political follow-up. The success of the strategy of conditionality depended on the results of the overall convergence of technical and political contributions. Recently, the results of the functioning of the conditionality were doubted.[337] The question deserves to be examined taking into account the critical remarks of the activity of the Venice Commission mentioned at the beginning of this chapter.
II.