Session 3 : The Constitution of EU (a): Myth or Reality? Flashcards
What is formal constitution?
a written document that has supreme value and is at the top of the hierarchy of norms, but also can be revised by a specific procedure. Finally the people have the power, as a constituent power.
According to whom can we enlarge the definition of constitution?
K Lenaert: a commonality of values, on which a union of sovereign states and their people is founded, if we accept this enlarged definition of constitution, it may operate in the absence of a unitary demos.
What is a constituent power?
George Vedel: Power to establish or revise a constitution. A form of political power, not judicial. Or in other terms, the power that peope have to set up the government they choose to give themselves and thereby limit their action by adopting a text called the constitution.
What concept can be used to challenge the notion of constituent power?
the notion of foundation powers of the member states. Their aim was to focus on the functional method of integration, which explains the absence of constitutional power. So the concept of CP was replaced by the action of the states.
Gruelle Marti : this action by the member states is basing the foundational power of the member states. They adopt the treaties and revise them. Not the demos but the member states.
To what extent can we consider that the charter of fundamental rights constitute a constitutional leap?
Willingness to create a convention-like body to write the charter.
Who contributed to writing the first text?
15 representatives of the heads of state and government, 16 of the European Parliament, 13 of national parliaments and head of the Commission
Who contributed to the 2nd text, and what does it reflect?
The European Council convened a European Convention with 30 members o national parliaments, 16 members of the European parliament and 2 members of the commission. An open forum to broaden the debate, with involvement of civil society it was a convention, connected to the federal system. Double democratic legitimacy thanks to the involvement of national and EU institutions + citizens.
To what extent can we consider that the EU has a constitution?
Constitution : foundation and limit of power, separation of powers, protection of human rights, reflected in the 2 EU treaties
The treaties:
Limit of powers : principle of conferral, found in article 5 of the TEU, the EU does not have the competence of its competences.
Protection of fundamental rights
How is the protection of rights enshrined in EU Law
granted same legal value as the treaties
accession to the European Convention for the Protection of Human Rights
the ECHR and Constitution traditions of member states as a form of general principles of Union La
Examples of cases that refer to the constitutional charter of the EU?
Les Verts: “basic constitutional charter”
Kadi “constitutional principles of the EC Treaty”
What is the constitutional function of the ECJ?
• Recognizes the value of the constitutional foundations of EU law
• ECJ prevails over national law
• Recognized the autonomy of the EU legal order
Referred to the treaties as the constitutional charter of the EU
What do we mean by constitutional identity of the EU?
According to Advocate General Cruz Villalon : The Union has thus acquired the character, not just of a community governed by the rule of law, but also of a ‘community imbued with a constitutional culture’, as a part of the common identity of the Union”
constitutional significance of the values of freedom, human dignity, democracy, equality, rule of law +
Legitimacy arises from the constitution values of the member states
a community of law but also a community of a constitutional culture
What was the ruling in Les Verts?
neither its Member States nor its Institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty
Define fundamental rights
integral part of the general principles of law whose observance the Court ensures, draws inspiration from the constitutional traditions common to the member states + guidelines supplied by international instruments.
What was the ruling in the Kadi case?
the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty
