THE ROLE OF NATIONAL CONSTITUTIONS IN SHAPING CONSTITUTIONALISM AT THE EU LEVEL
One of the themes that underpins the volume at hand is the general potential that sub-level constitutions may hold for bringing about a change at the federal/state level. Indeed, in the EU context national constitutions have in several crucial ways played a role in driving constitutional reforms at the EU level.
Three developments will be briefly explored here: protection of fundamental rights, clarification of competences, and the role played by the national constitutional ratification procedures.It is well known that the European Court of Justice developed the concept of protection of fundamental rights primarily as a response to national challenges to supremacy, in particular the German Constitutional Court’s Solange I decision.68 However, concerns continued to be voiced about the level of protection, with individual rights rarely being given priority over the common market interests.69 In 1992, Coppel and O’Neill argued in a well-known article that the ECJ’s high rhetoric about human rights protection has merely been instrumental in the Court’s expansion of the scope and impact of European law, with fundamental rights not being taken seriously by the Court.70 Such concerns resurfaced in the course of the Banana saga, where German courts voiced their open distrust with regard to the EU institutions and the protection of fundamental rights offered by the ECJ to individuals.71 The ECJ’s decision in the Banana case72 was widely considered to prove the deficiency of the review by the Court of Justice, falling short of the level of protection mandated by the ECHR and the constitutions of the Member States in being too lenient with regard to EU legal measures.73
Besides the priority being granted to the common market interests, the divergence in human rights protection at the national and the EU level involves a number of additional facets,74 some of which were more recently also pointed out by seven judges of the European Court of Human Rights in their concurring opinions in the Bosphorus case.75 For example, before the EU Charter of Fundamental Rights came into effect in 2009, the fundamental rights involved had not been directly protected as such but only indirectly as unwritten general principles.
Whilst rights can be defined in precise terms and may be restricted only under specified circumstances, principles are relatively vague and uncertain in scope and must inherently suffer exceptions.76 A further weakness is that overall, few human rights cases reach the ECJ in the first place; the reasons include the potential discouragement of the litigants by the lack of sympathy displayed by the ECJ towards arguments based on fundamental rights and the infamously narrow standing rules for individual complaints pre-Lisbon.77 The creation of the Charter of Fundamental Rights in 1999 was regarded as a direct response by the EU to the concerns voiced with regard to human rights protection in the EU. Recent concerns of national constitutional courts about the protection of fundamental rights by the EU institutions and the European Court of Justice in relation to EU measures regarding blanket electronic surveillance, secret legislation, European Arrest Warrant, and property rights may well show the continued importance of national constitutions in mandating a rethinking of the fundamental rights protection in the EU system.78The second key area where national constitutions have served as a catalyst for change is the clarification of the competences of the European Union. The underlying principle on the division of competences between the European Union and the Member States is that of “attributed powers,” under which the EU is to act within the limits of the powers conferred upon it by the treaties. However, in reality the Member States have witnessed a process of “creeping competence,” whereby EU institutions have interpreted their powers in an expansive way, which has subsequently been approved in the case law of the European Court of Justice. In the 1990s the constitutional courts of the Member States, especially that of Germany in the above-discussed Maastricht decision, expressed their concerns about a hidden expansion of EU competences.
Indeed the German Constitutional Court warned that it will exercise the right to review whether EU measures might be ultra vires and underlined the fact that the delegation of competences remains the preserve of the Member States.The concerns expressed at the national constitutional level with regard to the division of competences have led to several tangible results. The Maastricht Treaty introduced the principle of subsidiarity, which permits EU institutions to act in areas of concurrent competences only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Union. Additionally, while previously virtually no judicial limits had been placed by the ECJ on the EU competence, in 1996 the Court of Justice found that the then Article 308 of the EC Treaty was insufficient as a legal base for the EU’s accession to the European Convention on Human Rights.79 Furthermore, in 1998 for the first time an important EU measure was annulled on the grounds of a lack of competence in Germany v Council,80 where the Tobacco Advertising Directive was annulled owing to a lack of a legal base for the EU institutions to harmonize in the field of public health. The quest to better delineate the competences also became one of the central factors behind the EU’s constitutional reform. For the first time, the Lisbon Treaty created a clear catalogue of competences for the EU, introducing a list of competences that are exclusive, shared, and complementary (Articles 2–6 of the Treaty on the Functioning of the European Union). Additionally, the reforms include a so-called yellow card mechanism, whereby the European Commission is required to reconsider its legislative proposal should one-third of the national parliaments consider that the proposal in question does not comply with the principle of subsidiarity.
The third main way in which national constitutions have played a role at the EU level lies in the impact that the national constitutional procedures may have on the ratification of EU Treaties.
The analyses of the causes of ratification failures in various referendums have often focused on popular opinion and individual potentially misguided reforms in the treaties. However, an understanding of the national ratification and referendum procedures remains of crucial importance for the adoption of any new EU treaty in the future. Before the entry into force of the Lisbon Treaty, Article 48 TEU required that each and every Member State has to ratify treaty amendments under “the national constitutional procedures.” This procedure was also applied to the ratification of the EU’s Constitutional Treaty and subsequently the Lisbon Treaty, which rendered the ratification process a considerable challenge in comparison with previous ratifications, given the EU’s enlargement from fifteen to twenty-seven Member States. The deliberations in the Convention on the Future of Europe saw calls to facilitate the treaty amendment procedure. While the Lisbon Treaty did indeed introduce possibilities for a simplified amendment procedure for certain limited areas, this reform remains controversial given that the unanimity requirement, coupled with ratification under the national constitutional procedures, lies at the core of the concept of the Member States being the “Masters of the Treaties” and thus of the preservation of their sovereignty.Overall, the way in which national constitutions have affected the European Union’s constitutional system and served as a catalyst for change is an area where little research exists, and thus systematic scholarly inquiry would be welcome. To this end, the results of an ongoing study, The European and National Constitutional Law Project, which seeks to study the migration of constitutional principles from the national to European level, may be of considerable interest to readers in the future.81
1 Michael Burgess, Federalism and European Union: The Building of Europe, 1950–2000 (London and New York: Routledge 2000), 23ff.
2 Ibid., 28.
3 Robert Schuetze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford: Oxford University Press 2009).
4 Clive Church and Paolo Dardanelli, “The Dynamics of Confederalism and Federalism: Comparing Switzerland and the EU,” Regional and Federal Studies 15 (2005): 177–8.
5 Koen Lenaerts, “Federalism: Essential Concepts in Evolution: The Case of the European Union,” Fordham International Law Journal 21 (1998): 746ff.
6 Armin Von Bogdany, “The European Union as a Supranational Federation: A Conceptual Attempt in the Light of the Amsterdam Treaty,” Columbia Journal of European Law 6 (2000): 27ff.
7 Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press 1999); R. Bellamy and D. Castiglione, “Building the Union,” Law and Philosophy 16 (1997): 421ff.
8 Case 294/83, Les Verts v European Parliament [1986] E. C. R. 1339, para. 23.
9 See, e.g., Monica Claes, “Constitutionalizing Europe at Its Source: The ‘European Clauses’ in the National Constitutions, Evolution and Typology,” Yearbook of European Law 24 (2005): 81–125; Bruno De Witte, “Constitutional Aspects of European Union Membership in the Original Six Member States: Model Solutions for the Applicant Countries?” in Alfred Kellermann, Jaap De Zwaan, and Jeno Czuczai, eds., EU Enlargement: The Constitutional Impact at EU and National Level (The Hague: Asser Press 2001), 73; Anneli Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge: Cambridge University Press 2005).
10 For a comparative overview, see Claes, “Constitutionalizing Europe at its Source,” 81–125. For accounts on individual countries, see contributions published in Kellermann et al., EU Enlargement.
11 Claes, “Constitutionalizing Europe at its Source,” 107.
12 Ibid., 123.
13 Constitutions have been amended in this respect in Germany, Finland, Portugal, Austria, Sweden, France, Belgium, and Greece.
14 Germany, France, Portugal, Austria, Spain, and Belgium.
15 Portugal and Austria.
16 France, Germany, Portugal, and Greece.
17 For details, see, e.g., Claes, “Constitutionalizing Europe at its Source,” 81ff., and Albi, EU Enlargement and the Constitutions of Central and Eastern Europe, chap. 2.
18 For details, see ibid., chap. 5.
19 See ibid.
20 For an in-depth analysis of the Western Balkan countries, see Steven Blockmans, Tough Love: The European Union’s Relations with the Western Balkans (The Hague: Asser Press 2007).
21 Commission of the European Communities, Communication on Wider Europe – Neighbourhood: A New Framework for Relations with Our Eastern and Southern Neighbours, COM (2003), 104 final, 11 March 2003.
22 Marise Cremona and Christophe Hillion, “L’Union fait la force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU Foreign and Security Policy,” EUI Working Papers in Law, No. 2006/39, 8–18.
23 See Sandra Lavenex, “EU External Governance in ‘Wider Europe, ’” Journal of European Public Policy 11 (2004): 682.
24 Claes, “Constitutionalizing Europe at its Source,” 124.
25 Ibid., 123.
26 See De Witte, “Constitutional Aspects of European Union Membership,” 73–4.
27 As noted by Carlos Viver at the workshop that forms the basis of this volume.
28 Claes, “Constitutionalizing Europe at Its Source,” 123.
29 Donald Lutz, “Towards a Theory of Constitutional Amendment,” American Political Science Review 88 (1994): 355–70.
30 Eivind Smith, “The Constitution between Politics and Law,” in Smith, ed., The Constitution as an Instrument of Change (Stockholm: SNS Forlag 2003), 34.
31 Andras Sajo, “Accession’s Impact on Constitutionalism in the New Member States,” in George Bermann and Katharina Pistor, eds., Law and Governance in an Enlarged European Union (Oxford: Hart 2004), 427.
32 Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press 1999).
33 Andras Jakab, “Neutralizing the Sovereignty Question: Compromise Strategies in Constitutional Argumentation before European Integration and Since,” European Constitutional Law Review 2 (2006): 390.
34 See for details Jacques Ziller’s chapter on France in Anneli Albi and Jacques Ziller, eds., The European Constitution and National Constitutions: Ratification and Beyond (The Hague: Kluwer 2006).
35 This expression is borrowed from Jürgen Schwarze “Introduction,” in Jürgen Schwarze, ed., The Birth of a European Constitutional Order: The Interaction of National and European Constitutional Law (Baden-Baden: Nomos 2000): 14.
36 De Witte, “Constitutional Aspects of European Union Membership,” 73.
37 Sajo, “Accession’s Impact on Constitutionalism in the New Member States,” 427.
38 Hjalte Rasmussen, “Denmark’s Waning Constitutionalism and Article 20 of the Constitution on Transfer of Sovereignty,” in Albi and Ziller, The European Constitution and National Constitutions, 149–56.
39 Claes, “Constitutionalizing Europe at its Source,” 124.
40 See Leonard Besselink, “The Dutch Constitution, the European Constitution and the Referendum in the Netherlands,” in Albi and Ziller, The European Constitution and National Constitutions, 113ff.
41 Ibid.
42 This observation has been developed in more detail in Albi, EU Enlargement and the Constitutions of Central and Eastern Europe, 22ff. See also Eivind Smith, “The Constitution as an Instrument of Change: Introduction,” in Smith, The Constitution as an Instrument of Change, 15ff.
43 See Alex Stone Sweet, “Constitutional Dialogues in the European Community,” in Anne-Marie Slaughter, Alex Sweet Stone, and Joseph Weiler, eds., The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in Its Social Context (Oxford: Hart Publishing 1998), 325–6.
44 See Andras Sajo, “Learning Co-operative Constitutionalism the Hard Way: The Hungarian Constitutional Court Shying Away from EU Supremacy,” Zeitschrift für Staats- und Europawissenschaften (2004): 351.
45 For a more detailed account, see Monica Claes, The National Courts’ Mandate in the European Constitution (Oxford: Hart Publishing 2006).
46 Anneli Albi, “Supremacy of EC Law in the New Member States: Bringing Parliaments into the Equation of ‘Co-operative Constitutionalism, ’” European Constitutional Law Review 3 (2007): 25.
47 See in more detail De Witte, “Constitutional Aspects of European Union Membership,” 78.
48 Brunner, BVerfGE 89, 155; [1994] 1 CMLR, 57, at 75.
49 Germany: Brunner, BVerfGE 89, 155; [1994] 1 CMLR, 57, at 75; Denmark: Carlsen v. Rasmussen, Judgment of 06.04.1998 [1999] C. M. L. R., 855–62
50 Decision no. 92–308 DC, 09.04.1992, www.conseil-constitutionnel.fr/decision/1992/92308dc.htm.
51 These criteria are, according to Jacques, contained in the Conseil Constitutionnel Decision of 22.05.1985. see Jean-Paul Jacques, “Commentaire de la decision du Conseil constitutionnel n 92–308 DC du 9 avril 1992: Traite sur l’Union europeenne 1992,” (1992) 28 Revue Trimestrielle de Droit Europeen, 256.
52 Bertrand Mathieu, “Droit constitutionnel français et construction europeenne,” in Kostas Mavrias and Didier Maus, eds., Defense nationale – integration europeenne: Les reponses constitutionnelles (Sakkoulas 2002), 54.
53 The latter term has been used by Miriam Aziz, “Sovereignty Lost, Sovereignty Regained? Some Reflections on the Bundesverfassungsgericht’s Bananas Judgment,” Columbia Journal of European Law 9 (2002): 116ff.
54 For example, see Jo Shaw, “Postnational Constitutionalism in the European Union,” Journal of European Public Policy 6 (1999): 579; the articles in Joseph Weiler and Marlene Wind, eds., European Constitutionalism beyond the State (Cambridge: Cambridge University Press 2003); Paul Craig, “Constitutions, Constitutionalism, and the European Union,” European Law Journal 7 (2001): 137; Udo Di Fabio, “European Charter: Towards a Constitution for the Union,” Columbia Journal of European Law 7 (2001): 164; Rainer Arnold, “Peut-on definir le phenomène d’europeanisation des droits constitutionnels nationaux?” in Jacques Ziller, ed., L’europeanisation des droits constitutionnels à la lumière de la Constitution pour l’Europe (Paris: L’Harmattan 2003), 85; Michiel Brand, “Affirming and Refining European Constitutionalism: Towards the Establishment of the First Constitution for the European Union,” European University Institute, Law Department, Working Paper No. 2004/02, Florence, 17, available at www.iue.it/PUB/law04–2.pdf.
55 Ingolf Pernice, “Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited,” Common Market Law Review, 36 (1999): 703, 707. For reflections on this concept, see Joachim Nergelius, Pasquale Policastro, and Kenji Urata, eds., Challenges of Multi-level Constitutionalism (Krakow: Polpress. PL Publisher 2004).
56 Neil Walker, “The Idea of Constitutional Pluralism,” Modern Law Review 65 (2002): 317–59.
57 See J. Ziller, “Conclusions,” in Albi and Ziller, The European Constitution and National Constitutions.
58 See, e.g., Erika De Wet, “The International Constitutional Order,” International and Comparative Law Quarterly 55 (2006): 51–76; Christian Walter, “Constitutionalising (Inter) national Governance: Possibilities for and Limits to the Development of an International Constitutional Law,” German Yearbook of International Law 44 (2001): 192, 170.
59 See Cases Loizidou v. Turkey, Preliminary Objections, 23 March 1995, 1995 ECHR, Ser. A., No. 310, para. 75, and Bosphorus v. Ireland, 45036/98 [2005] ECHR 440, 30 June 2005.
60 The results of the project have been published in Albi and Ziller, The European Constitution and National Constitutions.
61 Decision No. 2004–505 DC of 19 November 2004, available on the website of the Conseil at.
62 See the chapter by Zdenek Kühn on the Czech Republic and Slovakia in Albi and Ziller, The European Constitution and National Constitutions.
63 Pl. US. 19/08, English translation available at the Court’s website, http://www.usoud.cz/.
64 Ibid, para. 209.
65 Ibid, para. 101.
66 Ibid, para. 101.
67 Ibid, para. 102.
68 Decision of 29 May 1974, BVerfGE 37, 271. For a detailed account of the fundamental rights cases of the Member States’ constitutional courts, see Monica Claes, The National Courts’ Mandate in the European Constitution (Oxford: Hart Publishing 2006).
69 For discussion of relevant literature, see Sionaidh Douglas-Scott, Constitutional Law of the European Union (Pearson Education 2002), 460–1 and 454–8.
70 Jason Coppel and Aidan O’Neill, “The European Court of Justice: Taking Rights Seriously?” Common Market Law Review 29 (1992): 670ff. and 692.
71 See for example Ulrich Everling, “Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts,” Common Market Law Review 33 (1996): 401.
72 Case C-280/93 Germany v Council [1994] ECR I-4973.
73 Bruno De Witte, “The Past and Future Role of the European Court of Justice in the Protection of Human Rights,” in Philip Alston, ed., The European Union and Human Rights (Oxford: Oxford University Press 1999), 878–9.
74 See Leonard Besselink, “Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union,” Common Market Law Review 35 (1998): 634ff., and De Witte, “The Past and Future Role,” 879.
75 Joint Concurring Opinion of Judges Rozakis, Tulkens, Traja, Botoucharova, Zagrebelsky and Garlicki, and Concurring Opinion of Judge Ress, Bosphorus v. Ireland, 45036/98 [2005] ECHR 440.
76 Besselink, “Entrapped by the Maximum Standard,” 634ff.; Tuomas Ojanen, “The Impact of EU Membership on Finnish Constitutional Law,” European Public Law 10 (2004): 543–4.
77 De Witte, “The Past and Future Role,” 882–3.
78 Anneli Albi, “From the Banana Saga to a Sugar Saga and Beyond: Could the Post-Communist Constitutional Courts Teach the EU a Lesson in the Rule of Law?” The European Constitution and National Constitutions. Common Market Law Review 47 (2010): 791–829.
79 Opinion 2/94 on Accession by the Community to the ECHR [1996] ECR 1–1759.
80 Case C-376/98 Tobacco Advertising [2000] ECR I-8419.
81 The project is conducted by Professor Monica Claes at the University of Maastricht in the Netherlands. See http://www.maastrichtuniversity.nl/web/Faculties/FL/Theme/Departments/InternationalAndEuropeanLaw/Projects/Eunacon/AboutEunacon.htm.