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Which Constitution for what kind of Europe?

By Richard Bellamy - posted Tuesday, 19 April 2005


These sorts of difference have figured in a number of clashes between the European Court of Justice (ECJ) and the constitutional courts of the member states. The German and Italian constitutional courts in particular have wanted to reserve their right to adjudicate on both questions of conflict between community measures and fundamental rights of their respective constitutional orders. They have also reserved the right, albeit with qualifications, to decide on the question of the competence between national and community law. In these cases, they have wanted to prevent the EU’s regime going beyond what they deem to be its polity competence.

It is not that the Member States do not share the general aspirations of a liberal democratic regime, but they interpret them slightly differently - and most crucially believe the legitimate polity within which the task of interpretation should occur, is at the national level. There are sometimes objections that one can have a clear demarcation between the European and national level. But this belief is naïve in the extreme. European law has been shown time and again to have knock on effects for huge amounts of domestic legislation - often rightly so. What has not been accepted, is the ECJ’s claims to supremacy. Indeed, from the perspective of the third model - which has de facto operated with the EU so far, such claims are viewed as illegitimate and at times even a threat to rights.

The key to the third model is a “mixed” regime that not only separates power by dividing functions, but also balances power between different groups of people and constituencies. Within the EU, for example, there is not only a separation of decision-making powers between the council of ministers, the commission and the European parliament, these bodies also represent different perspectives on the EU - namely: intergovernmental, supranational and an emerging transnational view (although national perspectives also prevail in the EP).

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This division is similarly present in the legal dialogue between the European Court of Justice and national constitutional courts. Despite the monist view of its supremacy asserted by the ECJ in the Simmenthal and International Handelsgesellschaft cases, EU law is to a large degree multi-dimensional, with most member state courts locating EU law within the domestic legal order. Tacitly, the ECJ has often had to accept this state of affairs. As a result, both national legal orders and the EU legal order have engaged in a process of mutual understanding and accommodation. As with EU decision-making more generally, this process has not led to agreement only being possible on a lowest common denominator. On the contrary, it has legitimated a general raising of common standards and a deepening of integration.

It was, for example, challenges by the German and Italian courts which obliged the ECJ explicitly to incorporate human rights considerations into its jurisprudence. Moreover, it did so by reference to a wide range of documents - from the European convention and other international charters, to the bills of rights found in many of the member states. The result has been a deep and nuanced jurisprudence that has obliged both the ECJ and national courts to have a fuller appreciation of the concerns of different traditions. Thus, the EU regime and polity have both reflected and to some degree developed through the interaction with and between the polities and regimes of the member states. The “mixed” character of the EU’s polity as national, supranational and transnational, is echoed in the mixed character of its regime.

Conclusion

The Constitutional Treaty is often justified on the grounds that current arrangements are too mixed to either produce coherent policies or be comprehensible to ordinary citizens. Against this charge, one has to put the extraordinarily dynamic character of the EU, which has shown no let-up over the past few years. Moreover, this enhanced integration has gone together with a wide acceptance of the rule of European law. There is a danger that the adoption of the mix of models 1 and 2 represented by the proposed constitutional Treaty will at best fix the EU at its current stage of development and at worst delegitimise some of the gains already made and many that might be achieved in the future.

The reason rests on their being in each case forms of regime that demand far greater advances in the EU “polity” than is desired by either the vast majority of citizens or politicians. In particular, the general favouring of the second model by the latter is in large part because they believe - I think misguidedly - that this will be the best way to entrench the prerogatives of the Member States.

In sum, the Constitutional Treaty is unnecessary and premature, it will entrench many of the worst aspects of the EU while undermining many of the best - not least its capacity for the flexible development of an EU polity and regime that respects the diversity of its constituent parts and enables each deepening and widening of the Union to advance with the consent of the peoples of Europe.

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About the Author

Richard Bellamy works for the Department of Government, University of Essex and is a Visiting Fellow, at the National Europe Centre, ANU.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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