EU Law and National Constitutions: The Constitutional Dynamics of Multi-Level Governance

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EU Law and National Constitutions: The Constitutional Dynamics of Multi-Level Governance

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This book provides an in-depth guide to researchers and practitioners who are interested in analyzing the evolution of EU law from a national and comparative constitutional law perspective. The volume deals with questions of how EU Member States’ constitutional systems, including the subnational tier, interact with the supranational level. It maps the evolution over time of constitutional strategies in the face of multi-level governance and individuates contextual factors on an empirical basis. The volume includes twelve national reports written by leading experts in constitutional and EU law, and in political science. The countries discussed include the six founding Member States, together with a selection of Member States in which a clear-cut evolution in the national constitutional approach towards the EU can be observed. These include the Czech Republic, Denmark, Hungary, Poland, Portugal and the United Kingdom. The latter is included as an “extreme” case in which the change in constitutional strategy over time has resulted in withdrawing from the Union altogether.

Taken together, the book assembles the building blocks of an explanatory theory of constitutional strategies in the face of multi-level governance. The volume will be of interest to students and researchers in comparative constitutional law, political science and multidisciplinary EU studies. It will also be a valuable resource for policy-makers.

Introduction. Constitutional dynamics of multilevel governance: indicators and hypotheses

I. The questionnaire: aims and structure

a. Ratification of EU Treaties

b. Judicial review of legislation

c. Parliamentary scrutiny in EU affairs

d. The role of subnational entities

II. Explaining the constitutional dynamics of multi-level governance: preliminary hypotheses

PART 1

Chapter 1. Belgium: a constitutional strategy in support of European integration – with some potential pitfalls

1. Treaty ratification

1.1 The ratification procedure

1.2 The political parties’ position

2. Judicial review of legislation

2.1 The establishment of a system of constitutional review

2.2 The Constitutional Court: Europe-friendly

2.3 The Constitutional Court: hesitant signs of resistance

3. Parliamentary scrutiny in EU affairs

4. The role of subnational entities

5. Conclusion

Chapter 2. France: From progressive acceptance to recent tension

1. European Treaties ratification and the French Constitution

1.1. The ratification procedure

1.2 Substantive requirements

1.3. The political debate about EU Membership

2. Primacy of EU law, supremacy of the Constitution and judicial review of EU law

1. From the acceptance of the primacy of EU law…

2. … to the guarantee of the supremacy of the French Constitution

3. Parliamentary scrutiny

3.1. The scrutiny over the action of the executive in EU affairs

3.2 The control of compliance with the principle of subsidiarity

4. The role of subnational entities

5. Conclusion

Chapter 3. Germany: Basic Law and European Integration – open but defensive statehood despite a constitutional obligation to EU integration

Introduction

1. Treaty Ratification

1. Starting Point: The Basic Law´s Open Statehood

1.2. The Europe Clause: The specific EU integration provision of Article 23 BL, its expansion by complementary legislation, and the role of legal academia

2. Judicial review of legislation: the German Federal Constitutional Court and EU integration

2.1. The role of the FCC in judicial review of EU integration

2.2. Centralized Constitutional Review and EU law

3. Parliamentary scrutiny in EU Affairs

4. The Role of Subnational Entities

Conclusion

Chapter 4. Italy: the long-term consequences of an "efficiency" constitutional strategy in the face of multi-level governance

1. Treaty ratification

1.1 The post-war scenario and the "authorization model"

1.2 The role of political parties from first to second Republic

I. Judicial review of legislation

2.1 The establishment of the Italian Constitutional Court

2.2 EU law and the Italian legal order: the evolution of a traditionally dualist country

a. Open but defensive: the evolution of the "counter-limits" doctrine

II. Parliamentary scrutiny in EU affairs

a. "Ascending phase": parliamentary participation in EU decision-making

b. "Descending phase": the implementation of EU law

III. The role of subnational entities

Conclusions

Chapter 5. Luxembourg: An EU-Supportive Constitutional System (Still) in Evolution

Introduction

1. Treaty Ratification

1.1. Current Treaty Ratification Procedure

1.2. Treaty Ratification Procedure Evolution

1.3. Latest Constitutional Reviews: The Parliamentary Dossier n.

6030 and the 2019 Reform

1.4. Political Debate

2. Judicial review of legislation

3. Parliamentary scrutiny in EU affairs

4. The role of subnational entities

5. Conclusion

Chapter 6. The Netherlands: A Political Commitment to Europe in a Pragmatic Constitutional Culture

Introduction

Treaty ratification

2.1 The ratification of the EU Treaties

2.2 The position of political parties

3. Judicial review of legislation

3.1 Constitutional review in the Netherlands: no role for the courts

3.2 The primacy of EU law in The Netherlands

4. Parliamentary scrutiny

4.1 Parliamentary control of the executive in EU affairs

4.2 EU affairs in the national political debate

5. Conclusions

PART 2

Chapter 7. The United Kingdom: the Constitutional Consequences of Ambivalence Towards European Integration

1. Treaty ratification

1.1 Debates about joining the EEC

1.2 The European Treaties and the UK’s Constitution

1.3 Post-accession Euroscepticism

1.4 Margaret Thatcher’s premiership

1.5 Increasing Conservative and Labour euroscepticism

1.6 Conservative governments since 2010

1.7 Anti-EU political parties

1.8 The Brexit referendum and the first Miller case

1.9 The Brexit deal and the second Miller case

2. Judicial review of legislation

3. Parliamentary scrutiny of EU affairs

4. The role of sub-national entities

Conclusion

Chapter 8. Denmark: Revisiting the Opt-outs in Denmark: a renewed focus on EU integration

1. Treaty ratification

1.1 Constitutional framework of ratification of EU Treaties

1.2 The political and historical background to the opt-out to the EU Membership

2. Judicial review of (EU) legislation

2.1 The doctrine of supremacy of EU law over national law under Danish law

3. Parliamentary scrutiny

3.1 The parliamentary control over the executive in EU affairs

3.2 EU affairs in the national political debate

4. The role of subnational entities

4.1 Autonomous territories and the relationship to Denmark and the EU

4.2 Decentralised geographic organisation

Conclusion

Chapter 9. Portugal: A European Union-friendly Juridsdiction

1. Treaty ratification

1.1. Portugal’s accession to the European Union

1.2. The EU and constitutional amendments

1.3. Leaving the EU

2. Ratification and the role of referenda

2.1. Constitutional procedure for the ratification of international treaties under the 1976 Constitution

2.2. Referenda under the original version of the 1976 Constitution

2.3. Constitutional evolution: paving the way for EU referenda

2.4. The role of Portuguese political parties in EU referenda

2.5. The role of the Constitutional Court in preventing EU referenda

3. Judicial review of legislation

3.1 Overview of the Portuguese constitutional review model

3.2 Ex ante control of EU law (as well of constitutional amendments triggered by EU law)

3.3. Ex post control of EU law and the principle of primacy

4.Parliamentary scrutiny

5. The role of subnational entities

Conclusions

PART 3

Chapter 10. Czech Republic: The Tale of Two and Half Presidents. Identifying the Key Discursive Struggles Which Shaped Czech Integration

Introduction

1. Treaty Ratification

2. Parliamentary scrutiny in EU affairs

3. Judicial Review of legislation

4. The role of subnational entities

Conclusions

Chapter 11. Hungary: From a Friend to a Foe?

1. Treaty ratification

1.1 The constitutional system in a nutshell

1.2 Treaty ratification

1.3 Procedural requirements

1.4 Substantial requirements

1.2 The political debate on membership - from Europhile consensus to dirty membership

2. Judicial Review of legislation

2.1 Constitutional review in general

2.2. The Doctrine of Supremacy in the case law of the Constitutional Court

3. Parliamentary scrutiny in EU affairs

4. The role of subnational entities

Conclusion

Chapter 12. Poland: From Cautious EU-Friendliness to Illiberal Euroscepticism

1. Treaty ratification

1.1 Poland’s way to the EU

1.2 The role of the political parties in shaping Poland’s European politics.

1.3 The tentative framing of the ‘integration clause’ in the Polish Constitution of 1997

1.4 The ‘European clause’ in action. Legal and political reasons for the application (or non-application) of article 90 of the Constitution.

2. Judicial review of legislation

2.1 The scope of the Polish Constitutional Tribunal’s competences with regard to EU law

2.2 Judicial review of EU law before 2015

2.3 Judicial review of EU law after 2015

3. Parliamentary scrutiny in EU affairs

4. The role of sub-national entities

Conclusion

Conclusions.

Conclusion. Building the founding blocks of a new bottom-up constitutional theory of EU integration

Introduction

1. What role for national constitutional actors in EU integration? A comparative overview

a. National Parliaments

b. Courts

c. Subnational entities

2. Testing the research hypotheses: avenues for future research

1. National constitutional cultures in the face of EU integration

2. Political strategies vs constitutional strategies: are Eurosceptic political parties able to determine a constitutional change?

3. Subnational constitutional strategies: what role for EU regions?

Concluding remarks

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