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The Necessary Complexity of Consent: Rules and Norms in EU Treaty Making
Published online by Cambridge University Press: 14 January 2020
Abstract
The idea that EU treaties have become too difficult to amend is a recurring one. This Article explores changing national constitutional rules and norms in the consent stage of EU treaty making in twenty-eight Member States between 1950 and 2016, asking how parliaments, people, and courts came to be much more significant for consent, what the consequences of this shift are, and offering some tentative proposals as to how the challenges this raises could be addressed. EU treaty making has become more complex, but we argue that treaties should be more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge
Footnotes
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Earlier versions of this Article were presented at the European Union Studies Association conference, Denver 2019, the Society of Legal Scholars conference Queen Mary London 2018, the UCD Sutherland School of Law research seminar, and the DCU School of Law and Government research seminar 2019. Thanks to participants for comments and to Ronan Riordan for able research assistance. The usual disclaimer applies.
References
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33 Arts 7–8 Constitution of the Republic of Portugal.
34 Art 148(1) Constitution of Romania.
35 A three-fifths majority is required for the delegation of powers by an international agreement which is the same majority for constitutional amendments. See Arts 7, 84 Constitution of the Republic of Slovakia.
36 The Constitution was amended prior to accession removing the possibility of a referendum on EU Treaties. A two-thirds majority has become the norm. See Art 3a Constitution of the Republic of Slovenia.
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49 Art 65 Constitution of the Estonian Republic; Sec 126 Riigikogu Rules of Procedure and Internal Rules Act (2007); Mendez, Mendez, and Triga note 2 above, p 56.
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54 See Closa, note 1 above, pp 44–46.
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58 Bulgaria (although if it were to be viewed as a constitutionally amending Treaty then a three quarters majority would be required), Croatia, Denmark, Finland, Hungary, and Luxembourg.
59 Belgium, Italy, the Netherlands, Poland, Slovenia, Spain, and the United Kingdom.
60 Sec 58 Act on the Autonomy of Åland 1991/1144.
61 Calculation based on the Centre for Research on Direct Democracy database available at www.c2d.ch.
62 Gerber, E R and Hug, S, ‘Legislative Response to Direct Legislation’ in Mendelsohn, M and Parkin, A (eds), Referendum Democracy (Springer, 2001), pp 88–108CrossRefGoogle Scholar; G Majone ‘The “Referendum Threat”, the Rationally Ignorant Voter, and the Political Culture of the EU’ (University College Dublin Law, 2009) Research Paper 4, pp 17–18.
63 Portuguese Constitutional Court Decision 531/98 and 704/2004. The new provision is Article 295 of the Constitution of Portugal.
64 Belgium, Cyprus, Estonia, Germany, Hungary, and Italy.
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69 Art 8(3) Fundamental Law of Hungary. There were two unsuccessful challenges to not having a referendum on the Lisbon treaty and the European Constitution. See Constitutional Court of Hungary, Decision No 61/2208 and Decision No 6/2005 (I.13). See also Mendez, Mendez, and Triga, note 2 above, p 82.
70 Arts 11, 75, 78(6) Constitution of the Italian Republic.
71 Austria, Bulgaria, Croatia, the Czech Republic, Denmark, Finland, France, Greece, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden.
72 For example, in France referendums became possible under the 5th Republic. See Art 11 Constitution of the Republic of France. In Greece, Article 44(2) of the Constitution of the Republic of Greece, which allows for referendums, has gained traction following the fiscal crisis. See Ungerer, J and Ziaka, L, ‘Reflections on the Greek Capital Controls: How the Rescue of the National Economy Justifies Restricting Private Business’ (2017) 44(2) Legal Issues of Economic Integration 135Google Scholar. In 2003, Article 114 of the Constitution of Luxembourg introduced a referendum for constitutional amendment—which may be required in relation to an EU treaty. The Dutch introduced a popular petition for a referendum in 2015. See Advisory Referendum Act (Wet raadgevend referendum) 2015.
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75 See eg Art 10A Constitution of the Czech Republic.
76 See eg Article 68 Constitution of Latvia, which allows the parliament to call a referendum provided half of its members vote for it and there are to be substantial changes to Latvia's membership of the EU. Article 90 of the Constitution of Romania allows the President to call a referendum on matters of national interest (which could of course include an EU treaty).
77 See Art 3a Constitution of Slovenia. A petition by voters to call a referendum on the Lisbon treaty failed as there were not enough signatures.
78 Secs 20, 42 Constitutional Act of Denmark.
79 See R(Miller) v Secretary of State [2017] UKSC 5.
80 Crotty v An Taoiseach [1987] IR 713. The Constitution was amended to ensure specifically that any Treaty adopting a common defence that would include Ireland has to be put to a referendum. See Art 29.4.9 Irish Constitution.
81 Art 42 Constitution of Austria; Art 87 Constitution of Croatia; Art 89 Constitution of the Republic of France; Art 8(3)(a) Foundational Law of Hungary; Art 46 Constitution of Ireland; Art 114 Constitution of Luxembourg; Art 66(3) Constitution of Malta; Arts 11(3), 147(3), 151(3) Constitution of Romania; Art 95(1) Constitution of Spain; Art 15 Instrument of Government (1974, amended to 2015) of Sweden (the referendum must be triggered by members of parliament). See also Besselink, note 25 above.
82 See eg Hungary; Arts 75, 138 Constitution of Italy; Art 148 Constitution of Lithuania; Art 235(6) Constitution of Poland.
83 Art 163 Constitution of Estonia; Art 77 Constitution of Latvia.
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88 Ex post constitutional review is (potentially) a form of treaty breaking rather than treaty making although we note that 11 Member States allow for ex post review. They are: Austria, Belgium, Croatia, the Czech Republic, Denmark, Estonia, Finland, Italy, Lithuania, The Netherlands, and The United Kingdom.
89 See the Council on Legislation in Sweden, whose advisory opinions are followed as a constitutional norm, and compare the position in Belgium, where the opinions of the Council of State are not necessarily followed by government.
90 Austria, Belgium, Croatia, Italy, Malta, The Netherlands. See eg the decision of the Austrian Constitutional Court in Case G 62/05 Constitutional Treaty, 18 June 2005; Case SV 2/08-3 et al Treaty of Lisbon, 30 September 2008; and Case SV 1.10-9 Treaty of Lisbon II, 12 June 2010. See also Wendel, note 87 above, p 111. On Belgium, see M Claes, The National Courts’ Mandate in the European Constitution (London, Bloomsbury 2006), p 218. On Croatia, see Cases U-I-1583/2000 and U-I-559/2001 (decided in 2010) and U-I-2236/2017. On Italy, see M Claes, ibid, p 622. On the Netherlands, see Art 120 of Constitution of the Kingdom of the Netherlands. Note however, that an advisory opinion can be sought. See Art 73 of the Constitution of the Kingdom of the Netherlands and note 93 below.
91 Cyprus (Article 1a of the Constitution gives EU law supremacy over the Constitution removing any ex ante review of treaties since 2006); Greece (constitutional review does not extend to treaties, see M de Visser Constitutional Review In in Europe: A Comparative Analysis (Bloomsbury, 2013), p 13; Denmark (Danish Supreme Court Case I-361/1997, 6 April 1998 Carlsen. Rasmussen. See also Claes, note 90 above, p 490. Luxembourg (Art 95, TER, 2, Constitution of Luxembourg (1868, as amended to 2009); Malta (Art 95, Constitution of Malta (1964, as amended to 2014)); The Netherlands (Art 120, Constitution of the Netherlands (1815, as amended to 2008)).
92 Bulgaria, see E Tanchev and M Belov ‘Constitutional Gradualism: Adapting to EU Membership and Improving the Judiciary in the Bulgarian Constitution’ (2009) 14(1) European Public Law 3; Arts 87(2), 97(2) Constitution of the Czech Republic. See also the Constitutional Court Act 1993; the Estonian Constitutional Review Court Procedure Act 2002 allows for such review as does the Hungarian Act on the Constitutional Court 1989. Constitutional review is possible in Ireland either via a reference to the Court by the President under Article 26 of the Constitution or by a citizen. See Crotty v An Taoiseach [1987] IR 713; Latvia Sec 16(3) Constitutional Court Law; Lithuania Arts 105, 107 Lithuanian Constitution; Poland, Art 133(2) of the Constitution; Portugal, Arts 134g, 278 of the Constitution; Romania, Art 146(2) of the Constitution; Slovakia, Art 125a(1) Constitution; Slovenia, Art 160 of the Constitution; Spain, Art 95(2) of the Constitution.
93 Opinions are advisory in Belgium, Luxembourg (although constitutional change was only required once and followed, see Art 83bis Constitution of Luxembourg); the Netherlands (Art 73 of the Constitution); followed as a constitutional norm in Sweden (Instrument of Government, ch 8, Art 18). They are binding in Finland (Sec 74 Constitution of Finland, Ojanen 2004, p 205); France (Art 54 of the French Constitution).
94 See eg German Federal Constitutional Court, BvE 2/08, Judgment of the Second Senate of 30 June 2009; Manfred Brunner and Others v The European Union Treaty, Cases 2 BvR 2134/92 and 2159/92; German Federal Constitutional Court, Case BVerfGE 89, 155, Treaty of Maastricht, Decision of 12 October 1993.
95 Germany, Ireland, Latvia, Slovakia, and the UK.
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109 Art 126(14) TFEU.
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