The issue of unconstitutional constitutional amendments is extremely topical in the field of national and comparative constitutional law. In a recent article (2013), Roznai signals that ‘the global trend is moving towards accepting the idea of limitations – explicit or implicit – on constitutional amendment power’. Indeed, about seventy-eight constitutional documents in the world contain some kind of ‘eternity clause’ that seeks to entrench liberal democratic values and/or supposedly essential features of the constitutional order concerned. Many jurisdictions, moreover, know a doctrine that indicates what kind of changes may and may not be brought about by way of constitutional amendment. And a significant amount of contemporary states has a practice of judicial review of constitutional amendments.
But what about the ‘supra-national’ EU? Would there be room to argue that substantive limitations of amendability – explicit and/or implicit - also exist as regards the EU Treaties? And if so, would the Court of Justice of the European Union (CJEU) have the competence to enforce such limits? These questions are the central topic of a paper we are currently working on and that we will present at academic conferences in Durham and Milan this spring.
It is not self-evident to search for substantive constraints on the Member States’ Treaty revision power. On the face of it, the EU formally does not have a constitution, but it is governed by a set of Treaties. And according to the Vienna Convention, treaties may be amended by agreement between the parties. In other words, the procedure of Article 48 would just be optional. The Member States would ultimately remain ‘Masters of the Treaties’. It is often considered, however, that EU primary law – the Treaties and general principles of EU law - has been ‘constitutionalising’. In EU legal scholarship, it is now almost conventional to understand EU primary law as constitutional law. Accepting the idea of substantive requirements of Treaty revision may be one of the next steps in the ongoing process of the constitutionalisation of the EU.
In the first part of the working paper, we will explore what kind of arguments are being used to justify a doctrine of unconstitutional constitutional amendments in national systems. We will show that substantive amendment limits may be based upon the constitutional text or upon an implicit understanding of what norms or values may not be tampered with. Secondly, we will ascertain to what extent such arguments can be used to justify a doctrine of unconstitutional constitutional amendment in EU law. In conclusion, we will argue that it is quite conceivable that certain EU Treaty amendments would indeed be deemed a violation of the Treaties.
Searching for substantive requirement of amendability may shed light on the deeper constitutional structures that supposedly underlie the text of the EU Treaties. It may furthermore reveal whether and how constitutional aspirations expressed by the TEU preamble, among other places, have been translated into enforceable provisions. The exercise may be especially important at a time when constitutional democratic norms and values are coming under pressure in certain European countries.
We have posted a preliminary version of the paper – tentatively titled ‘Unconstitutional Constitutional Amendments in European Union Law: Considering the Existence of Substantive Constraints on Treaty Revision’ - on SSRN. We invite you to read it and we would highly appreciate any comments or suggestions on the content.