On European Constitutionalism

On European Constitutionalism

Introduction

In this essay I will aim at explaining to what extent it is true to claim that the EU has a constitution in all but name, as well as providing an account of the European legal system from a constitutionalist approach. In section one I will explain why the thesis that the EU has an unnamed Constitution is incorrect but that nevertheless the EU’s legal order possesses many typical constitutional features. In section two I will make an analogy between the EU and the UK legal systems, in order to illustrate the claim that a fully developed legal order can exist without containing a Constitution. In the third section I will elucidate how the radical changes that the EU has endured in the last five decades might invite us to question if the Westphalian system of sovereign nations is still a valid paradigm in our time. In the conclusion I will summarize what is said in the other sections and finish with some last consideration on the phenomenon of European Constitutionalism.


I. Constitutional Features of the European Legal System

The analysis of the elements that compose national constitutions is a good point of departure for a study of European Constitutionalism, since an attempt to elucidate whether the EU has or not a Constitution can only be conducted in a satisfactory manner if we can identify what elements can be found in most national constitutions and if those same elements are present in the European legal order. In order to identify the key elements of national Constitutions I will resort to the work developed in this field by Joseph Raz and to Craig’s analysis of Raz’s work.

Raz has acknowledged seven defining features of national constitutions. “First, the constitution will be constitutive in the sense of defining the main organs of government and their powers. Constitutions will contain both substantive and procedural norms of this nature. In Nation States which are federal, or where there is some measure of devolution, the structural provisions of the constitution will also identify the powers of the federal and state or regional governments.” (Craig, 2001, p. 126) In the case of the EU, this function is fully performed by the Treaty of Rome (Treaty establishing the European Economic Community of 1957 now renamed as Treaty on the Functioning of the European Union) and the Treaty of Maastricht (Treaty on European Union of 1992).

Therefore, we can affirm that this element is present in the EU legal system.

“A second feature is that a Constitution is meant to be stable. It can of course be altered, but it is meant to serve as a stable framework for the political and legal institutions of the country.” (Craig, 2001, p.126) However, the EU is a deeply unstable political form, being in constant legal and political transformation. The very nature of the process of European integration requires it to be that way. A Constitution would certainly provide the EU with a degree of stability that it is otherwise hard to achieve. But the question here is not so much the instability of the EU, but rather the fact that a Constitution must be, or at least usually is stable. The EU does not possess any document that can be considered stable in this sense. In fact, the closest thing to an EU constitutional framework, the sum of the key European Treaties, is in constant mutation like the recent ratification of the Lisbon Treaty shows. If we also consider the signings of the Treaties of Amsterdam in 1997 and the Treaty of Nice in 2001, which introduced important modifications to the “Treaty on European Union” and the “Treaties Establishing the European Union”, than we must conclude that the Constitutional basis of the EU presents clear signs of instability, and we should conclude that this constitutional feature is not present in the EU legal order.

Third, Constitutions “are normally enshrined in one or a small number of written documents.” (Craig, 2001, p.126) Again, this is not the case of the EU. The mainstream theories of European Constitutionalism usually consider a European “de facto” Constitution to be composed of a set of treaties (at least three, namely the Treaty on the functioning of the EU, the Treaty on European Union and the Charter of Fundamental Rights) that have been “constitutionalized” by the jurisprudence of the ECJ. However, this set of disparate legal sources is not an equivalent to a single document or even to a small number of written documents. The EU has a legal order which has many constitutional features, but this is not equivalent to say that it has a Constitution

“The fourth attribute of constitutions is that they are superior law. Ordinary law that conflicts with the Constitution will be invalid or inapplicable.” (Craig, 2001, p. 126)

Thanks to the development of the principles of Direct Effect and Primacy of EU law, the ECJ has managed to covert the EU law in a superior legal form, since when national norms collide with the European legal order they are considered inapplicable by the ECJ. Furthermore, the European Treaties are also considered superior to other types of European legislation, like the regulations and directives, which seems to indicate that, from the structural perspective, the EU legal system seems to operate following a strong Constitutionalist logic.

“Fifth, constitutions are justiciable, meaning that there are judicial procedures whereby the compatibility of laws and other acts with the constitution can be tested, and those that are incompatible can be declared invalid.” (Craig, 2001, p.126) European Constitutionalism also satisfies this requirement, since the ECJ has been acting as a Constitutional (as well as Constitutionalizing) Court for the last fifty years. In fact, it was the boldness of the ECJ to declare invalid the national rules that went against European norms which has truly allowed the EU to develop into a supranational rather than a mere international organisation. Ever since the establishment of the supremacy of EU law principle in the Costa v. Enel case, the ECJ has repeatedly declared the incompatibility of national laws with the EU legal framework (Factortame; Frontini v. Ministero delle Finanze; Defrenne v. Sabena) thereby declaring the inapplicability of the national dissenting laws.

“The penultimate feature of constitutions is that they are entrenched. The constitution can only be amended by special procedures, which are different from those governing ordinary legislation.” (Craig, 2001, p.126) And to a certain extent this is also true in the case of the EU. The EU constitutional framework, which is composed by international treaties, is created and modified in a different way in relation to the bulk of ordinary European legislation in the form of regulations and directives. It is also true that European Treaties are substantially harder to approve and to modify than ordinary EU legislation.

Finally, constitutions express what Raz terms a common ideology. They contain provisions about issues such as democracy, federalism, civil and political rights which express the common beliefs of the population about the way their society should be governed. (Craig, 2001) If we recur to the entirety European of its sources, it becomes clear that the EU legal system is rich in this aspect. However, there is no single document that can, by itself, claim to express the ideological legal dispositions that characterize the EU as a political-social entity. In what comes to fundamental rights, it is necessary to resort to the European Charter of Fundamental Rights. On the other hand, it is necessary to recur to the Treaty on European Union, particularly to its preamble, to identify the higher values that inspire the European Polis, “freedom, democracy, equality and the rule of law”. In fact, in the preamble of the aforementioned Treaty, what can be described as a common ideology is said to inspire the creation of the European Union and of a European citizenship. On the Title I of the same treaty, common provisions are established, elaborating on what is said on the prologue of the Treaty, and also providing dispositions on the relation between the Union and its constituent members, particularly articles 4, 5 and 7. Title II of the same treaty is also a very relevant mention, since it provides an extensive set of provision on Democratic Principles. However, any compilation of EU legal principles would not be complete without the crucial Treaty on the Functioning of the European Union, in particular part II which provides dispositions on non-discrimination and citizenship of the union, and especially part III which provides dispositions on the single market. Also, a full layout of the ideological and federative principles of the EU must include the valuable case-law provided by the ECJ, in particular the principles of primacy and direct effect of the EU law as well as its many decisions based on the non-discrimination and single market dispositions of the Treaty on the Functioning of the European Union which not only provided an interpretation of the Treaty but also had a transforming effect on EU law and politics.

Valuable conclusions may be taken from the previous study. I believe that it has made clear the fact that the EU legal system possesses many Constitutional features, but not all.

In particular, the most decisive argument against the thesis of a “de facto” European Constitution is that there is no single Constitutional document that can bear that name. As such, I believe that it is more sensible to allude to a quasi-constitutional European legal system rather than a unnamed European constitution.


II. Similarities between the British and the European Legal Systems: An Analogy

In the previous section I have assessed which types of Laws are usually present in a national constitution, and tried to establish if those Laws are present somewhere in the structure of the European Legal system. I have concluded that most of the Laws that are usually present in a Constitution can be found in the European Legal system, albeit they are not codified. This feature is not unique to the European Legal system. The UK for instance, also does not have a Constitution. However, most of the elements present in national constitutions of other countries can be found somewhere in the British legal structure. A comparative politics approach in this case is highly relevant, since both legal systems share many similarities, and both have constitutional features without actually having a Constitution.

The EU and the UK political systems share many similarities. Firstly, although the UK is considerably more centralized than the EU, both can be described to some extent as federations. Also, both organizations have been founded by an international treaty. In the British case, the Treaty of Union led to the union of England with Scotland, thus creating the UK. In the case of the EU there have been many treaties that paved the way to the signing of the Maastricht Treaty in 1992 which led to the creation of the EU in its present form and with its current name. Constitutions usually are the instrument through which countries are founded, but in the cases of the UK and the EU this has been achieved through international treaties.

Also, both the EU and the UK are similar in the sense that their Law is not codified. The absence of legal codes means that constitutional dispositions must be found in other sources, such as international treaties. In the case of the EU this is particularly relevant, since the International Treaties, namely the treaties of Rome and Maastricht actually form the constitutional legal basis of the EU. Given the absence of a European Constitution, the powers of the institutions, the decision-making process, the division of powers and the rights and duties of European citizens (especially the rights) are all contained in these two international treaties.

Also, because there are no codes of laws, the decisions of the Courts become extremely influential. Systems that are not codified confer considerable authority to the Courts of Justice, since these systems are usually much more susceptible of containing legal vacuums and unclear legal dispositions. In the case of England and the UK this gave rise to the system of Common Law where court’s decisions are binding, and in the case of the EU it created a very strong Court of Justice that has greatly shaped the European legal system by interpreting in a bold way the unclear and incomplete European treaties.

Finally, it has been said that although the EU does not have a constitution in name it has an unnamed constitution composed of International Treaties, European Laws and decisions of the ECJ. The same exact statement can and has been used to equally describe the British Legal system (that a British Constitution can be found in different sources such as International Treaties, Parliament Acts and decisions of the British courts). This statement is true to a great extent since we can expect to find the elements of most national constitutions in other legal sources in both the UK and the EU legal systems.

Summarising what has been said so far in this section, the UK and the EU share similarities such as being federations, having been created by international treaties and not having a codified system of laws and not having a constitution. Remarkably, both systems compensate for not having a constitution by a combination of international treaties, political laws and influential court decisions.

An even closer look from a comparative politics approach shows us that at least three successful democracies in the world, the UK, New Zealand and Israel, have managed to create and maintain an effective democratic polis without ever adopting a Constitution. On the other hand, historical dictatorships such as Nazi Germany, the USSR and Pinochet’s Chile, operated under a Constitution. These examples prove how political systems can be democratic and based on the rule of law without having the need to develop a Constitution, and how the mere existence of a Constitution does not guarantee the implementation of democracy or the rule of law. (Skoch, 2005)

My observations in this section lead me to judge that 1) A fully sovereign state can be created and maintained without possessing a Constitution; that 2) The mere existence of a Constitution does not guarantee the democratic or legalist character of any political structure; and that 3) A State can develop a political structure characterized by Democratic institutions and the rule of law without having to develop a formal Constitution.


III. European Constitutionalism, the Constitutionalization of the EU and a New Model of Sovereignty for Europe

The evolution of the EU as a legal-political construction has motivated academics to develop concepts such as that of European Constitutionalism. Arguably the core of the concept of European Constitutionalism is that, although the EU does not have a constitution, the successful implementation of the principles of Supremacy and Direct Effect of EC Law led to the constitutionalization of the European Treaties. (Armstrong, 1998) It is important to refer to this particular aspect of the theoretical debate on the nature of the European legal system, since it is intimately connected with the idea of a “de facto” European Constitution. I have previously argued that such a notion should be discarded, but I have not made a reference to the possibility that one particular European Treaty could be considered to be a Constitution to some extent. With the recent ratification of the Lisbon Treaty, it would be tempting to consider that particular treaty to be the philosopher stone of the European legal system and therefore grant it a quasi-constitutional status. This however, would be a mistake. The Lisbon Treaty does not constitute a legal framework by its own, like any constitutional document should. The Lisbon Treaty has been designed as an amending treaty, and has three main functions: 1) it modifies the Treaty of Rome and the Treaty of Maastricht; 2) it has made the European Charter of Fundamental Rights a legally binding document; and 3) it systemizes the European system of Treaties since it establishes a Legal-Political basis composed of the three documents previously mentioned. After discarding the Lisbon Treaty as an amending treaty rather than a constitutive one, we should however consider the three most important European treaties as serious candidates for consideration as Constitutional documents. But unfortunately none of the three documents can be considered by itself as a legal basis for the EU, since only the three together can fully perform that function. Hence, none of these three documents can be considered, on its own, a constitutional document. There is, nevertheless, another possibility. We could consider that a de facto European Constitution would be the combination of the three treaties. Thus, the European Constitution would not be a unitary document, but a document composed of three different parts. Furthermore, that three-folded European Constitution is protected and interpreted by the ECJ, which often performs functions that would usually be performed by Constitutional Courts of Justice. Although this last thesis has some considerable weight, if we stay faithful to the conception that a Constitution must be one document, we should still have to deny that the EU has a Constitution of some kind, although the combination of the Treaty of Rome, the Treaty of Maastricht and the Charter of Fundamental Rights now constitute a solid legal foundation for the European Polis.

There is a considerable difference between actually having a Constitution and having a constitutional framework that performs most of its functions. The attempt to ratify a European Constitution and its subsequent rejection by the European people have illustrated this perfectly. Consider the question “why are Europeans willing to accept a de facto constitutional arrangement (like the present one), but are not willing to ratify a fully fledged European Constitution?" It is important to understand that for the ratification of the European Constitution the direct approval of the European people, often summoned in a referendum, was asked for. On the other hand, the current legal constitutional framework has been developed through mechanisms that are not directly dependent on popular participation, namely the ECJ, the European Council, the European Parliament and the European Commission. If the peoples of Europe had decided to give their approval to a European Constitution, a new European society, founded on a common political consciousness rooted on the will of the people, would have been created. Furthermore, the symbolic power of a fully fledged Constitution, to this moment a prerogative of sovereign nations, would certainly illustrate a commitment of Europeans with the European integration process. Therefore, an actual Constitutionalization of Europe (the ratification of a European Constitution) would have an incredible importance, not necessarily because of its legal implications, but because of its legitimacy and symbolic features). The failure of the European Constitutional project, on the other hand has raised some significant obstacles to the European Integration Process. As Richard Whitman eloquently wrote in his essay “No and after-options for Europe”, “public dissatisfaction with Europe, expressed through the voting down of an agreement forged by member-state governments, indicates that there is a disjuncture between the views of citizens and those of their elite as to the benefits of continuous and deepening collaboration within the framework of an ongoing European Integration process”. (Whitman, 2005)

But even in spite of the rejection of the EU Constitution, the process of European Integration continues to show signs of progress, particularly the ratification of the Lisbon Treaty at the end of the last year. As a Political Structure, the EU is in continuous evolution, and it is no longer clear if it is an International Organization, a Federation or both at the same time. As an organization the EU presents a number of very peculiar characteristics that makes it increasingly unique. The model of legal integration that it has been pursuing is something new in the history of mankind and it might change the history of political institutions forever. The process of legal integration of the European Polis is an incredible and unlikely event, and is categorized by a crescent shift of power in Europe, from the Nations towards the EU. The role of the ECJ as a transforming agent has been paramount, since the introduction of the principles of Direct Effect and Supremacy of European law has been instrumental to create a new legal hierarchy in Europe, where European laws have precedence over national laws. This kind of structure is characteristic of Federations, where federal laws take precedence over regional laws, as can be observed in the German and American cases. However, as Weiler pointed out in his essay “A Constitution for Europe? Some Hard Choices”, this hierarchy of norms “is not rooted in a hierarchy of normative authority or in a hierarchy of real power.” As Weiler explains, the European case is atypical because “European Federalism is constructed with a top-to-bottom hierarchy of norms, but with a bottom-to-top hierarchy of authority and real power”. (Weiler, 2002)

If national Constitutions, governments, parliaments and courts of justice are subjected to the higher authority of EU Law can we still consider European nations to be fully sovereign? I believe we cannot. We have reached a stage where the Westphalian system of sovereign nations cannot be further upheld. A new kind of International Law, namely modern EU law, has eliminated the absolute form of sovereignty that European nations possessed in the past. The legal structure of the European Communities has started to change ever since the ECJ declared that “the Community constitutes a new legal order of International Law for the benefit of which the States have limited their sovereign right, albeit within limited fields”. (Weiler, 2002, p. 572) The transcendental issue of European Constitutionalism is not if the EU has a constitution or not, but rather if EU law can override national laws and constitutions, and EU law has, as the ECJ’s jurisprudence testifies, already acquired that power. Therefore, the model of sovereignty of EU member states has evolved and adopted a new shape, “in which authority and policy-making influence are shared across multiple levels of government - subnational, national and supranational” (Marks, Hooghe and Blank, 1996, p. 342) Under this new model, sovereignty is shared by different levels of government, beginning in regional levels, passing through the national level and finally reaching international levels. This model applies to virtually every dimension of European governance, including the legal hierarchy of the European Polis, the European decision-making process and even the direction of the process of European integration. Despite the fact that the member-States retain the real power in most levels (taxing, coercion, popular legitimacy and popular allegiance), their commitment to obey to a non-coercive European higher authority, what Weiler has decided to call Constitutional Tolerance (Weiler,2002) is what has granted a formidable power to the EU supranational and international institutions. The willingness of the States to respect the authority of the EU institutions and laws has created a new kind of Political Structure that is based not on coercive power but rather on the respect for supranational institutions and norms.


Conclusion

In this essay I have argued that the notion of the EU having a constitution in all but name is incorrect, since the EU does not have a document that can properly be considered as such. I have defended the idea that a Constitution is a code of laws, usually the most fundamental laws of the State, and that the EU does not possess such a document. Although the Lisbon Treaty has, de facto, introduced many of the measures that the rejected EU Constitution was aiming at, a set of International Treaties do not and cannot replace a constitution.

Like Paul Craig has claimed in his essay “Constitutions, Constitutionalism and the European Union”, although the EU possesses some characteristics of a Constitution, “it does not however possess a constitutional document that is identifiable as such containing these features. There is no document that treats the constitutional attributes in a manner separate from the many other norms contained within the treaties. Nor is there any such document that draws together the Constitutional doctrine developed by the European Court of Justice.” (Craig, 2001) Therefore a strict answer to the question “does the EU have a Constitution in all but name?” is no. In spite of this, I have argued that by a combination of Treaties, Jurisprudence and Laws it gathers enough elements to have a well developed constitutional law. I have compared the European case with the British case, and I have come to the conclusion that the UK and the EU share many political and legal features. The most important is that the EU, like the UK, has a system of law that is not codified, but has nevertheless a complete legal system if we combine all its legal sources. In other words, the EU does not have a Constitution, but it doesn’t really need one, just like the UK. In the case of the EU a Constitution would nevertheless represent a major breakthrough, since it would be a symbolic step towards a greater integration of Europe. Although a European Constitution would essentially be a symbolic step, since the EU has a legal system that gathers most of the elements of any national constitution, this is a step that Europeans are reluctant to take. However, even in spite of the failure of adopting a Constitution, the European legal system has managed to develop into an integrated European system of government and laws that presents numerous Constitutional features and follows a constitutional logic. This new model of governance and law has greatly undermined if not toppled the Westphalian order of sovereign nations in Europe.


Bibliography

Cases:

Costa v. Enel.

Defrenne v. Sabena.

Factortame.

Frontini v. Ministero delle Finanze.

van gend en loos.


International Treaties:

1707. Treaty of Union

1957. Treaty on the Functioning of the European Union.

1992. Treaty on European Union.

1997. Treaty of Amsterdam.

2000. European Charter of Fundamental Rights

2001. Treaty of Nice.

2007. Treaty of Lisbon.


Academic Articles:

ARMSTRONG, K. 1998. Legal Integration: Theorizing the Legal Dimension of European Integration. Journal of Common Market Studies, 36, 156-173.

CRAIG, P. 2001. Constitutions, Constitutionalism and the European Union. European Law Journal, 7, 125-150.

MARKS, G., HOOGHE, L., K. BLANK 1996. European Integration from the 1980's: State-Centric versus Multi-level governance. Journal of Common Market Studies, 34, 345-78.

RAZ, J. 1998. On the Authority and Interpretation of Constitutions: Some Preliminaries. In: ALEXANDER, L. (ed.) Constitutionalism. Cambridge University Press.

SKACH, C. 2005. We the peoples? Constitutionalizing the European Union. Journal of Common Market Studies, 43, 149-70.

WEILER, J. 2002. A Constitution for Europe? Some Hard Choices. Journal of Common Market Studies, 40, 563-80.

WHITMAN, R. 2005. No and after-options for Europe. International Affairs, 81, 673-87.