EU Constitutional Law

Allan Rosas, Lorna Armati

• Publisher: Hart Publishing
• Year: 2018
• ISBN:
  9781509909155
• Edition: 1
• Topic: Droit
• Subtopic: Droit international

The third edition of this acclaimed book continues the story of the EU's constitutional journey. The EU's constitution, composed of myriad legal texts, case law and practice, is no less of a moving target than before and the pace of change has, if anything, increased since the publication of the second edition. In a constantly challenging geopolitical context, the EU faces unprecedented political, economic and cultural trials, all of which impact upon the evolution of its constitution. In particular, the migration crisis has given rise to the need for substantial revision of the chapter dealing with the area of freedom, security and justice, and the institutional reforms embarked upon in the quest to restore financial order have taken a more structured form following the inception of a European banking union. Fully updated to include the ramifications of Brexit, the book succeeds – where others have struggled – in making sense of the EU's complex constitutional order, focusing on its essential features but taking into account the profound changes that have taken place over the past 20 years. The EU has become much more than an internal economic market. Recently it may even be argued that the focus of action has been in areas such as immigration and third-country nationals, security and defence policy, and penal law and procedure, and the work towards creating a European banking union underlines the continued need to monitor economic and fiscal policy. Eschewing too much detail, the authors underline the essential values, principles and objectives of the integration regime as well as its basic normative structure and hierarchy. In this context, the decentralised nature of the EU is highlighted as an integral part of its constitutional make-up. Recurring themes include European citizenship, fundamental rights and the rule of law. The book also confronts head-on the problems and challenges facing the Union and the gap which is often perceived between lofty ideals and harsh realities. The book will be useful to students of EU law and European integration but will also appeal to a broader audience of researchers and practitioners, including political scientists.

1

What Constitution? A Rose by Any Other Name

The reference in the title of this book to ‘EU constitutional law’ needs some explanation. It is not free from controversy, as some would still prefer to view the European Union (EU) as an intergovernmental organisation governed by public international law which does not have a constitution in the proper sense of the word and which thus renders the notion of EU constitutional law less (or even in-)appropriate.

The doubts and outright opposition to the idea of an EU Constitution were brought sharply into focus by the fate of the Treaty establishing a Constitution for Europe (signed on 29 October 2004, hereinafter Constitutional Treaty of 2004).¹ While the Treaty was ratified by many of the Member States, including on the basis of referendums in Spain and Luxembourg, referendums in France and then the Netherlands produced negative results.² The ratification process was halted and the idea of establishing a ‘Constitution for Europe’ was abandoned. Instead, on 13 December 2007 the Member States signed the Treaty of Lisbon.³

The ratification and eventual entry into force on 1 December 2009 of the Treaty of Lisbon also encountered problems, in particular when an Irish referendum in June 2008 produced a negative outcome. The result of this referendum led not only Ireland but also two other Member States, Poland and the Czech Republic, to postpone their decision concerning ratification. However, in a second Irish referendum held in October 2009, a clear majority voted in favour of the Treaty. The Treaty entered into force following the final ratifications by Poland and the Czech Republic.⁴

That the passage was not smooth was perhaps to be expected. There is no denying that, in substance, the Lisbon Treaty incorporates important parts of the abortive Constitutional Treaty of 2004. The technique used is less heraldic, providing for amendments to the existing Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). And the grandiose symbols are gone; no mention is made of the (supra)national anthem or the European flag. But does changing the title consign all talk of a ‘Constitution’ to the history books, or does a rose by any other name smell as sweet?

Historically, the modern-day process of European integration may be said to have begun when the aftermath of World War II saw the establishment of the Council of Europe (1949). That body has become a general forum for intergovernmental cooperation possessing some supranational features mainly in the field of human rights. Beyond Europe, other international organisations of a predominantly intergovernmental nature proliferated: for example, the United Nations (UN) and the wider ‘UN family’ with a number of Specialized Agencies as well as what is now the World Trade Organization. The notion of ‘constitutionalisation’ has even been used to refer to institutional and normative changes in the global legal order more generally.⁵

However, as will be explained in greater detail in chapter two, the EU, especially as it emerges from the Treaties of Maastricht (1992), Amsterdam (1997), Nice (2001) and Lisbon (2007), differs in many respects from these more traditional international organisations; it goes much further than global or public international law in providing for not only coordination and cooperation but also integration and supranational institutions.

This process of ‘deeper’ integration, involving stronger supranational features, was initiated by the establishment, in 1951, of the European Coal and Steel Community and, in 1957, of the European Economic Community (EEC) and the European Atomic Energy Community (Euratom). While the initial form of these supranational organisations, which counted only six founding Members, more or less confined them to economic integration, a much broader integration process, including a stronger political dimension, has become apparent through the Single European Act of 1986 and the Treaties of Maastricht, Amsterdam, Nice and Lisbon referred to above. The EEC became simply the European Community (EC), and even that no longer exists since the Treaty of Lisbon brought the whole edifice under the heading of European Union, launched already as an umbrella concept by the Treaty of Maastricht.

That European integration is a process (and thus constantly evolving) is beyond doubt: the founding texts have proclaimed this since the very beginning, each subsequent Treaty marking ‘a new stage in the process of creating an ever closer union among the peoples of Europe’ (Article 1 TEU). That the ‘end’ of that process is not fixed forms the ideological and teleological basis for a study of the EU and what may be referred to as its ‘constitutionalisation’.⁶

This integration process has progressively covered ever more areas and implied increased recourse to supranational mechanisms. But, perhaps paradoxically, it has also come to involve an ever greater number of European states, either as Member States or as closely associated neighbouring countries. As this third edition goes to print, the Union has grown from the initial six Members to 28 Member States with several associated States aspiring to become full Members.

This remarkable enlargement of the Union seemed inexorable. Until, that is, the decision of the United Kingdom (UK), based on a referendum in June 2016, to make use of the procedure provided for in Article 50 TEU: on 29 March 2017, the UK notified the EU of its intention to withdraw from the Union (commonly referred to as ‘Brexit’).⁷ As provided for in Article 50(2), negotiations with the UK were initiated with a view to concluding an agreement, ‘setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union’. According to Article 50(2), EU law shall cease to apply to the UK from the date of the entry into force of the withdrawal agreement or, failing any agreement, two years after the notification referred to above (that is, on 29 March 2019), unless it is decided to extend this period.⁸ As this edition goes to print, it is too early to predict the outcome of these negotiations or even the exact timetable of the withdrawal. Indeed, the only thing that is clear is the complexity of the process.

What is, on the other hand, easier to predict, is that Brexit will not halt the European integration process. It is, we suggest, not controversial to note that the UK was something of a recalcitrant Member State: indeed, it was the stated opinion of the government of the time that it was only able to campaign for a vote to remain a member of the EU in the referendum referred to above, if a ‘new settlement for the UK’ was negotiated in order to supplement existing UK opt-outs from EU rules, with a view to placating British concerns about the direction and pace of European integration.⁹ Often hesitant to continue down the path to deeper integration, many initiatives to develop primary or secondary EU law fell by the wayside because of British opposition. Most recently, for instance, the unprecedented euro and sovereign debt crisis affecting the EU and its Member States around 2008–2012¹⁰ would have led to a far more comprehensive review of the provisions on economic governance than was in the end the case but for the deployment by the United Kingdom of its veto concerning the proposed amendment to the TFEU.¹¹ As this edition goes to print, there are a number of ideas and initiatives to take the integration process further, including in the areas of economic and monetary policy, asylum and immigration and military defence¹² and at least as far as primary law is concerned, it is not to be excluded that such amendments will be rendered less difficult to accomplish in a post-Brexit Union.

Be that as it may, and in apparent contrast to the current feeling of ambivalence towards the integration process, the dynamic nature and constitutional character of the EU legal order is increasingly emphasised by the judges in Luxembourg. We say ‘apparent contrast’ because the quite remarkable achievements that have taken place in the name of that integration process do not make the headlines in the same way as lines of migrants queueing up for access to the Union. As early as 1986, the European Court of Justice (ECJ)¹³ characterised the Community Treaties as a ‘constitutional charter based on the rule of law’.¹⁴ More recently, the Court has also referred to the ‘constitutional principles of the EC Treaty’ and the ‘very foundations of the Community legal order’, which is ‘internal and autonomous’¹⁵ as well as the ‘constitutional status’ of the general principles of Union law.¹⁶ In Opinion 2/13, the ECJ observed that the EU ‘has a new kind of legal order, the nature of which is peculiar to EU, its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation’.¹⁷ We are convinced that, while keeping in mind the highly dynamic character of the EU legal order, it is today both appropriate and useful to speak of an EU constitutional order and of EU constitutional law.¹⁸

One of the basic objectives of this book is therefore to illustrate and discuss the specific features of the EU and notably those which make it different from both intergovernmental organisations and independent states in the traditional sense. This implies an emphasis on the EU as a distinct and quite exceptional legal and constitutional order.

The ambiguities and divergent opinions relating to the concept of an EU constitution stem from the hybrid nature of the EU, which is situated somewhere between nation states and intergovernmental organisations (chapter two) and which, while being based on Treaties concluded by states, has taken on some of the competences and powers of those states (chapter three) giving them a life of their own (chapter four).

A discussion of the system or hierarchy of norms, an element central to all constitutions, under any definition of that term, will follow (chapter five). However, the manner in which these norms have ‘flowed into the estuaries and up the rivers’¹⁹ to permeate the domestic legal order, notably via the principles of primacy, direct application and direct effect, will serve to explain more fully the unique nature of the EU as a legal and constitutional order (chapter six).

Indeed, the decentralised nature of the integration regime cannot be overemphasised. Not only is EU law implemented primarily at the level of Member States rather than that of EU institutions, but it also addresses itself to an increasing extent directly to various sub-components of the Member States, such as national parliaments, courts and administrative authorities. Chapter seven identifies these various actors. Chapter eight will address another striking feature of the EU, often described as ‘differentiation’ or ‘variable geometry’. This notion refers to different territorial ‘circles’ or regimes of integration which are to be found inside the EU (for instance, the common currency which, as this edition goes to print, applies to 17 Member States) but which may also be applied externally, in its relations with what Article 8 TEU calls ‘neighbouring countries’ with which the Union is instructed to develop ‘a special relationship’.

As the present book is not an introduction to EU law but to EU constitutional law, substantive EU law (such as the economic freedoms or EU environmental law) will be considered only to the extent that this is necessary for an understanding of the constitutional structure (and therefore appears mainly in chapter thirteen). Furthermore, an attempt will be made to spare the reader from institutional and procedural ‘nitty gritty’. The focus will instead be on structural issues. Thus, in addition to the general values, principles and objectives or apparently more technical rules on competence and power-sharing dealt with in the early chapters, we will also address the issue of democracy and the perceived deficit from which the EU suffers on the one hand (chapter nine) and the role of fundamental rights, including the principle of equal treatment, or non-discrimination, on the other (chapter eleven).

The creation in 1992 of the EU, and perhaps in response to the expanding powers of the organisation and the increasing allegations of democratic deficit referred to above, brought with it a new perspective on the ‘peoples of Europe’ and introduced the notion of the European Union citizen (chapter ten). That the focus of the Union is less and less ‘economic’ is ...