The Research of a Parameter

The activity of the Venice Commission takes places between the Scilla of the European constitutional heritage and the Cariddi of the national constitutional identities of the European states.

According to its preamble, the Lithuanian Constitution is historically based on two sources: the sixteenth-century Statutes of Lithuanian and the Constitutions of the Republic of Lithuania. However, the legal value of these two sources is not always clear. Is the inter­preter of the Lithuanian legal order allowed to draw inspiration from the old historical Statutes? Does the reference to the Constitution of the Republic regard it as having been established after the First World War? Does this reference acquire a special meaning from the preamble's reference to the ‘reborn State' of Lithuania? Does the Lithuanian history authorise an approach that is incompatible with the experience of other European states, where authoritarian regimes were established?

Many similar questions have also interested the Venice Commission, whose advising and monitoring activity has focused on the discontinuity/continuity of the new democra­cies with the old historical traditions and the regimes previously present in the concerned states.

¹ M Ignatieff, ‘“The Discovery of Chance,” by Aileen M Kelly' New York Times, 20 May 2016 and GS Morson, ‘Herzen: The Hero of Skeptical Idealism' (2016) 63 New York Review of Books 18 underline the importance given to these traditions by Alexander Herzen, whose hopes for their realisation were betrayed by the Soviet Regime. The new Russian Constitution would have implied a reaction to the Soviet practice. abandonment of the authoritarian principles of the governments established in the years between the First and Second World Wars.^[86] The Commission had to understand the mean­ing of the references to the past, because the identification of that meaning was essential to the exercise of the Commission’s advising and monitoring functions.^[87] Due to the principle of conditionality, all states were interested in continuing their newly acquired member­ship of the supranational institutions. Therefore, the states were bound to comply with the engagements mainly subscribed at the moment of the accession to the Council of Europe and the European Union. Were those historical references compatible with the European yardstick, which transnational practice has identified with the European constitutional heritage? Moreover, the novelty of the introduction of this safeguard of the constitutional identity of the Member States of the European Union brought new issues to the attention of interpreters: was there the possibility of tensions and conflicts between the supranational authorities and the states due to Article 4(2) TEU, which obliges the EU to respect the equal­ity of the Member States before the Treaties as well as their national identities?^[88] What are the limits of the protection of the national identities with regard to the common principles and exigencies of the European Union?

II.