The lecture took place online on February 27, 2024, and students from Airlangga University Indonesia and Titu Maiorescu University Romania – Faculty of Law participated in the event.
My presentation was structured as follows:
I. General Introduction
II. Amendment of EU Member States constitutions, limits and procedures
III. Explicit and/or implicit limits of the amendment of constitutions and their use in relations with the EU legal order
IV. Conclusions
In the Introduction, I mentioned that the lecture is part of the Research Project conducted by the Central European Professors’ Network, which is coordinated by the Central European Academy. The focus of the research is to analyze the future of the European Union (EU) and the processes happening within the EU. I emphasized the premise of the research, meaning the EU’s transition – maybe towards federalism, since the entry into force of the Lisbon Treaty. I also explained the concept of „EU constitutional order” (the autonomy of the EU legal order is at the heart of the idea that the founding treaties of the EU are not “ordinary international treaties”, and therefore EU law is not an “ordinary international law”). However, the EU is currently in a transitional phase, where national and EU processes sometimes conflict with each other. Therefore, I raised the main question of our common research: „What future for the EU?”, explaining that the aim of our research is to examine how individual Member States, and in particular individual institutions, operate (and can operate) in achieving cooperation, what processes and institutions might need to be rethought, such as redefining EU and Member State competences, revising the principle of pre-emption, and shifting the role of EU agencies towards networking.
Starting from one of my research proposal in the general framework of the Project (the study titled The amendment of Member States’ constitutions in relation to the EU legal order and constitutional identity), I focused in my presentation on the central values of the constitutions of the Member States. These values are reflected within the limits of the revision of the constitutions and are/should be correlated with the central values and identity of the EU. Consequently, to determine what the future holds for the EU as a structure of states, it is necessary to analyze each Member State’s foundation and core values. These values serve as boundaries for revising their constitutions, and constitutional courts’ interpretation of these limits enhances our understanding of each Member State’s constitutional identity. Furthermore, this interpretation acts as a filter for the EU treaties and contributes to the architecture of the EU as a structure of states. I explained that myperspective in the lecture is not on the core values/limits of the amendment of the Constitution in itself, but in relation with the legal order of the EU.
In the Section II – Amendment of EU Member States constitutions, limits and procedures, I explained that the issue of the limits of constitutional amendments in itself are extremely topical in the field of comparative constitutional law. I gave examples of legal doctrine, documents of the Venice Commissions and of the reunions of the Constitutional Courts (e.g the XVIth Congress of the Conference of European Constitutional Courts, on the topic “Role of Constitutional Courts in upholding and applying Constitutional Principles”). Emphasizing the significance of the process of constitutional amendments, I referenced Professor Richard Albert in his book „Constitutional Amendments, Making, Breaking and Changing Constitutions”. He describes the constitutional amendment rules as „the gatekeepers to a constitution”, illustrating that they „open a window into the soul of a constitution, exposing its deepest vulnerabilities and revealing its greatest strengths”. I discussed also about the reasons for revision of the Constitution of the Member States of EU, making a distinction between internal and external reasons. As concerns the last ones, I explained that the “Europe clause” was the symbol of this development. It is found explicitly or implicitly in the Constitutions of the EU Member States, aiming at regulating the relationships between the States and the EU structure, between national law and EU law. Further, I exemplified with reference to the revision of Romanian Constitution in 2003. Thus, by Article 148 of the Romanian Constitution, the obligations of the public authorities arising from the act of accession were established and the “connection” to the EU legal system was achieved, regulating the supra-legislative, but infra-constitutional position of the EU Treaties and other binding European acts.
In the Section III – Explicit and/or implicit limits of the amendment of constitutions and their use in relations with the EU legal order I tried to answer to the following questions:
a) What are the fundamental values that form the heart of the constitutional system of each country (Member State of EU) (explicit/implicit)?
b) How have these principles been understood by the constitutional courts in relation to the legal structure of the European Union? How was the concept of constitutional identity created and what role does it play in the EU’s overall framework?
As concerns the first question, I started with the example of Constitution of the Portugal, which isperhaps the most meaningful example of MS in terms of volume of explicit unamendable provisions. I continued with Romanian Constitution, mentioning that the Romanian Constitutional Court qualified the limits of revision laid down in Article 152 as a ”a core identity of the Romanian Constitution”, which “should not be relativized in the process of European integration”. I made reference also to the Article 79(3) of the German Constitution, which establishes „unamendable provisions” by stipulating that: “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible”, and the doctrine of the so-called ‘eternity clauses’ belonging to the German Federal Constitutional Court. Next, I referred to the Constitution of France, Italy, Czech Republic, Lithuania, Bulgaria, Croatia, Greece, Cyprus, Luxembourg, Belgium, Slovenia, Poland, Denmark, Netherlands, Spain, discussing the limits of the revision of the fundamental laws and their interpretation.
In theConclusions,I pointed out the following ideas:
a) The selected examples support the general assessment of the Venice Commission in the Report cited, according to which “The overview of provisions for constitutional amendment illustrates the rich European constitutional heritage, which in itself is a legacy to democracy and the rule of law.” (par.59) This diversity is a reflection of the roots of European constitutionalism (par.63), influenced “by the domestic political context and compromises”.
b). Most European constitutions include a set of values that constitute the essence of the constitutionalism of each state, and which cannot be subject to change (or at least complicated procedure for the amendment of the constitution).
c) In some European states, these values have been characterized as the constitutional identity of the respective state.
d) As concerns the importance and the relation with the structure of the EU, the review of the constitutional amendments illustrates most obviously the evolution of the vision on the constitution itself as supreme law of the land (constitutions have political value, expressing national identity and policy goals, and the constitutional nucleus looks from this perspective more resistant to the influence of EU law; while constitutional courts allow for EU law to have primacy over national law in general, they do not usually allow it to have primacy over the constitution’s core, which they define as matters of constitutional identity, maintaining the authority to „safeguard the inviolable constitutional identity” of their states).
e) The future of the EU depends on how this core of the constitutionalism of each Member State interacts with the identity core of EU order, defined by the ECJ (having at its core the values laid down in Article 2 of the Treaty on European Union – The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.)
The debates within this event substantiate, together with other findings from the research, the conclusion that the EU is ”an ideal without a model” (see also the affirmation of Professor Joseph Weiler “Europe has charted its own brand of constitutional federalism”). From a constitutional point of view, the EU is an original construction with a unique diversity that distinguishes it from any current federal structure. Unity in diversity is the official motto of the EU, suggesting a centripetal tendency towards unity but reflecting unattainable differences in both state entities and constitutions. However, the questions of the participants raised the issue of sovereignty of the Member States in the context of the developments of the EU and the compatibility with a federal or more integrated structure of the EU. Another interesting question was: Why EU needs a Constitution?
