The European Common Constitutional Heritage

Because the European Common Constitutional Heritage calls into question national, political, religious, and ideological elements, a complex study is necessary to find a suitable definition for it.

In a few words, the European Common Constitutional Heritage represents the inner sense of the European identity. It is worth noting, however, that the European Common Constitutional Heritage cannot be conceived as the mere sum of CoE or EU members’ identities, which are themselves difficult to define as the changes European society undergoes cause these identities to evolve. Sometimes, the European Common Constitutional Heritage reflects the aspirations of European countries more than the goals they have already achieved.

According to some scholars, identity is constructed to find a valuable past justifying present decisions, as “one essential element of statesmanship is inventing a glorious tradition to continue”.^[1486] Considering the Latin etymology of the noun “invention” (from invenio, which means “to find”), it is possible to affirm that Europe has invented a glorious constitutional tradition. It began in England, with the 1215 Magna Charta and subsequent Charters recognizing the people’s rights and framing the King’s powers. It then flourished with the 1789 French Declaration, which stated that the protection of rights and the separation of powers represented the main and essential aim of any constitution (Article 16). Henceforward, constitutions affirmed as fountain sources, the Kelsenian Grundnorm,^[1487] where the fundamental tenets of people’s sovereignty, rule of law, separation of powers, and protection of human rights are entrenched.^[1488] During the first wave of constitutionalism between 1828 and 1926, the Weimar Constitution (1919) made democracy and people’s sovereignty the centerpieces of all the aspects of the country’s institutional life,^[1489] making it one of the great masterpieces of European Constitutionalism.

The legal framework this Charter introduced, however, led to Germany’s instability. During the constitution-making processes European countries underwent after World War II, the elements that had weakened the Weimarian system and allowed for the ascendance of National Socialism (e.g., extreme proportionality, lack of judicial review, and constitutional flexibility) became essential during the debates of constitutional framers from the second wave of constitutionalism. In the meantime, while States engaged in the approval of Charters and Declarations to protect fundamental rights at the international level (e.g., the 1948 UN Declaration), European integration took its first steps. The attempt to overcome the atrocities of dictatorships by defining forms of cooperation followed two different but parallel paths. On one side, the establishment of the Council of Europe (May 5, 1949) led to the approval of the European Convention for the Protection of

Human Rights and Fundamental Freedoms—ECHR (1950)—and to its system of rights’ adjudication. On the other side, the ECSC Treaty (Paris, 1951) and the ECC Treaty (Rome, 1957) started the European Communities economic integration, which evolved into an integrated eco-financial system that also protected rights and freedoms, currently known as the European Union.

After the fall of the Berlin Wall in 1989, the third wave of constitutionalism began with the overturning of the dictatorships in Portugal, Greece, and Spain. It concluded with the approval of liberal democratic constitutions in Central and Eastern European countries, which joined Western Europe in the construction of the European Heritage after the difficult and bloody communist regimes.

Hence, the identity of Europe and its heritage for future generations has mainly been built on the negation of elements of the past (the ancien regime, the XX century authoritarianisms, the communist regimes)^[1490] and the progressive integration of European countries through international cooperation.

In the 1970s, the EU Court of Justice highlighted for the first time the existence of constitutional traditions common to the Member States,^[1491] representing a sort of unwritten bill of rights.^[1492] Since then, the main pillars of the European Common Constitutional Heritage started to be debated constantly. The pillars emerged as conditions for joining the EU as a member and were finally individuated by the so-called Copenhagen criteria^[1493] ^{^[1494]: democracy and respect of rights and of the rule of law, market economy, accountable and transparent institutions, and decision-making 23 processes.
CoE also played a relevant role by intervening in the definition of a continentally accepted catalogue of rights, which EU also wants to adopt, as demonstrated by the aim expressed in EU Treaty of Lisbon (2009) but, in 2016, still controversial and difficult to realize.^[1495] Furthermore, CoE’s institutions discussed the interplay between the European Common Constitutional Heritage and national constitutional traditions. As the distinguished Antonio La Pergola, President of the Commission for Democracy through Law (known as the Venice Commission), stated in 1996, this common heritage is “interwoven with the threads of domestic constitutionalism”^{^[1496]} and does not represent a superimposition, but rather a recognition of the fact that all the European Constitutions tend to protect the same values. The constant dialogue between national and supranational courts demonstrates such interplay. In the CoE context, for example, it passed through the recognition of the margin of appreciations of the States.^[1497] In the EU context, it evolved through the so-called counter-limits theory.^[1498]
Furthermore, the European Common Constitutional Heritage could not merely be considered another denomination of European Constitutional Law, given the differences in their content.
The latter is composed of CoE and EU aquis, each of them enforceable in front of a competent Court. The former, on the other hand, represents a set of values, even progressively enshrined in the Law, which is derived from the philosophic elaboration of European thinkers and the history of the “Old Continent”.^[1499] This history led to the existence of specific elements that characterize the European Heritage, which partially overlaps with the values of so-called global constitutionalism. In fact, Europe directed global attention to human rights by giving prominence to social rights, which are protected by the CoE’s European Social Charter and by the EU’s Charter of the Fundamental Social Rights of Workers (1989). The understanding of rights as based on the sanctity of human dignity also provides for another distinctive element of European Heritage: the total abrogation of the death penalty.^[1500] Furthermore, fundamental rights are intended to provide individuals with a secure and safe place, where social justice, equality, and solidarity are considered the leading principles and where the development of new technologies and modernization primarily serve the scope of eradicating poverty and granting environmental protection and sustainable devel- opment.^[1501] Another fundamental element that characterizes European Heritage concerns the idea of democracy, assigning a specific role to local entities, even in non-federal European States. In fact, CoE provided a Congress of Local and Regional Authorities (1957) to allow for periodical meetings among them on specific issues. At the EU level, the Committee of the Regions (1994) provided a specific advisory body for EU institutions, which allowed for the participation of local entities in the decision-making process. Finally, local entities’ importance has been highlighted in the European Charter of local self-government passed in 1985 by CoE members and has been recalled in EU treaties.^[1502] As previously mentioned, this European Common Constitutional Heritage does not always represent a consolidated aquis, but rather is sometimes constituted by the common aims of European States.
Among these aims, there is also, in the words of the Treaty of Lisbon, the promotion of European values and the contribution to the establishment of peace and security (Article 3, Section 5). For these reasons, the EU’s attention toward Mediterranean countries increased after the EU expanded to Central and Eastern Europe in 2004. The EU debated the meaning and content of the Heritage with these countries, distinguishing between the negotiations with candidate States and those with non-European neighboring countries.^[1503] Turkey, which is not the topic of this essay, the most well-known case of Heritage discussions with a negotiating candidate. The second category mainly includes North African countries, which have been considered partners of the European Neighboring Policy since its establishment in 2004. Furthermore, these countries were involved in a policy specifically devised for the Mediterranean area. The same was launched in 1995 with the Barcelona Process and eventually evolved into the Union for the Mediterranean in 2008. Pursuant to these policies, the EU established economic relations with Mediterranean countries and, thus, introduced shared European principles of respect for democracy and the rule of law.^[1504] Recognizing that a dialogue regarding shared values had existed for centuries, these policies facilitated partnerships focused on cultural exchanges in order to implement said shared values. The CoE, with the assistance of the Venice Commission on a consultative role, developed activities specifically for these countries. This has been, for instance, the case with Morocco and Tunisia—members of the Commission since 2007 and 2010, respectively. Both countries have been experiencing an intervention since 2011 while undergoing their respective constitution-making processes. In these instances, the experts of the Venice Commission tried to help North African framers by underlining the constitutional provisions that best evidenced reliance upon the rule of law, democratic principles, and protection of human rights.
The result was not the importation of the European model, but rather a merging of local traditions with the European Common Constitutional Heritage, consistent with the sentiment that had already been expressed in La Pergola’s speech. This means that despite the controversial situations in Hungary and Ukraine, the Common Constitutional Heritage is generally affirmed in Europe. By contrast, the consolidation of the values of democracy, pluralism, human rights, and rule of law, however, is still ongoing in North African neighboring countries. These are the main reasons why the analysis of which unamendable provisions these countries choose to protect is particularly relevant when trying to understand whether and how a Common Constitutional Heritage is spreading. In fact, Europe proved to have a specific identity when it comes to understanding unamendability. Europe’s understanding differs from that of the U.S. for example, because constitutional courts are afforded the power to strike down unconstitutional constitutional amendments (i.e., those constitutional reforms that comply with provided procedures but contravene core constitutional values).^[1505] In other words, unelected bodies as Courts may intervene in the amending procedures in order to safeguard fundamental values^[1506] despite the U.S.’s concept of democracy being based upon popular sovereignty. This is clear a contrario evidence of the existence of a European identity.
The Venice Commission made some considerations when discussing the commonalities between the unamendable clauses of CoE members’ Constitutions. It highlighted that Constitutions approved after turmoil usually provide these clauses for the purposes of protecting democracy and rights and consolidating a constitutional culture based on the European identity. As previously mentioned, this identity is not immutable and the Commission urged the States for “a restrictive and careful approach to the interpretation and the application of unamendable provi- sions”^{^[1507]} in order to let principles such as democracy, federalism, and rights evolve, as it had already happened to them between the XIX and the XX century. Even if amending unamendable clauses is a possibility, the Commission highlighted the huge responsibility placed on the Courts, which should carefully consider the sociopolitical and historical context in which the amendment proposals take place.
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Source: Albert Richard, Oder Bertil E.. An Unamendable Constitution? Unamendability in Constitutional Democracies. Springer International Publishing,2018. — 389 p.. 2018

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