The Lisbon Treaty A Constitutional Document, Not a Constitution

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The Lisbon Treaty A Constitutional Document, Not a Constitution

The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective


    1The European Union has undergone a constitutional transformation in the past half century.

    It has evolved from its origins as the European Economic Community, promoting economic integration, into a supranational polity that has come to be perceived in constitutional and even federal terms. This essay will explore the extent to which the modern day European Union can be said to possess some sort of constitution. In doing this, it will be necessary to decouple such a constitution from the notion of state constitutionalism and instead define it as a unique transnational constitution. Despite this, useful comparisons can be drawn between state constitutions and that of the EU, in order to ascertain the form the latter may take. Particularly useful in this regard is the analogy between the British Constitutional model and

    2the EU constitution. This writer concludes that the EU possesses a composite constitution

    more akin to that of the United Kingdom rather than a formal written text, as is typical in continental Europe. As such, in the present writer‟s view, the Lisbon Treaty would feature, along with the other treaties, as a constitutional document within the constitutional arrangements of the EU, without itself becoming a formal constitution.

The Nature of a Constitution

    Firstly, it is important to define what is meant by a constitution within the specific context of the European Union. The dictionary defines a constitution as being “a body of fundamental

    principles or established precedents according to which a state or organization is

    3governed.” However, a constitution is more than this rather formalistic definition suggests.

    4As well as being a legal concept, constitutionalism also has a certain political impact. Paine

     1 Henceforth known as the EU. 2 Composed of both written and unwritten sources. 3th Shorter Oxford English Dictionary (5 Edition OUP, Oxford 2002). 4 R Bellamy and D Castiglione, „Introduction: Constitutions and Politics in R Bellamy and D Castiglione (eds),

    Constitutionalism in Transformation: European and Theoretical Perspectives, (Blackwell Publishers, Oxford



The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    suggests that a constitution is a written document, which both displays certain formal

    5characteristics and is publicly recognisable. This positivist conception of a constitution

    seems overly formalistic and ignores the fundamental place a constitution holds in society as distinct from other laws. The constitution on the one hand must be distinguished from the

    6constitutional text or individual constitutional documents on the other.

    The constitutional text accords with the dictionary definition of a constitution and that advanced by Paine. It is the constitutional text that must be formally valid and regulate the exercise of public power in a positivistic manner. This finds support in the instrumental view

    7of a constitution as a superstructure for the maintenance of an independent normative order.

    This, however, is merely the legal manifestation of a more fundamental legal/political concept. Normative conceptions consider the constitution as a fundamental norm upon which

    8the whole organisation of socio-political life must ultimately depend. Therefore, two distinct

    elements can be identified that must be present in order to classify a given set of laws as a constitution. Firstly, the rules must regulate the exercise of political power in a given political entity and secondly they must be seen as embodying the fundamental basis of society within the polity. The validity of the former is assessed on the basis of Kelsen‟s positivist

    9explanation of the basic norm in terms of formal legitimacy. The validity of the latter, on the

    10other hand, is assessed with reference to social or substantive legitimacy.

     5 T Paine, Political Writings (CUP, Cambridge 1989) at p. 81. 6 C Schmitt, Verfassungslehre (Duncker u. Humblot GmbH, Berlin 2002) ch. 1, para. 2. 7 F A Hayek, Law, Legislation and Liberty, volume 1: Rules and Order (University of Chicago Press, Chicago

    1973). 8D Castiglione, „The Political Theory of the Constitution in R Bellamy and D Castiglione (n 4). 9 M Hartney (tr), H Kelsen, General Theory of Norms (Clarendon Press, Oxford 1991) at p.116-117. 10 Essentially this is where the members of society accept the laws of that society as binding and comply with them. Weiler suggests that substantive legitimacy, at least at the level of the state, is where “a minority will/should accept the legitimacy of a majority decision because both majority and minority are part of the same Volk...,” J H H Weiler, „Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision‟, (1995) ELJ 219 at p.228; see also Hurrelmann who argues that “a number of social preconditions [such as social

    integration] can thus be defined that have to be met in order to secure the normative legitimacy [or substantive


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

The Existence of Supranational Constitutionalism

    Our current understanding of the nature of a constitution is very much influenced by

    11nineteenth-century constitutionalism and the liberalist view of the nation state. The essence

    of this liberal constitutionalism is of government grounded in, limited by, and devoted to the

    12protection of individual rights. The Peace of Westphalia of 1648 announced the dawn of the

    European (nation) state and a new system of spatial organisation that was founded in the

    13naturalness of state sovereignty. It is on this basis that our ideas about what constitutes a constitution have evolved. It is, however, important to note that any discussion of constitutionalism beyond the state should not merely be an attempt to define transnational constitutionalism with reference to state constitutionalism. Instead, the constitutional

    14discourse about post-state spaces needs to be attuned to the idiosyncrasies of such orders.

    As a result of globalization and the increasing inter-dependence of global economies, states, more and more, need to devise ways to regulate their mutual interactions on the international level. This allows for the possible existence of a positivist type constitution as described above. Whilst this may be all that exists on the broader international plane, it does not preclude a more intense type of constitutionalism on a post-state, sub-global level. The

    1516existence of a demos is seen as a prerequisite of the existence of a state constitution.

    Therefore, the lack of a demos at the international level is seen as precluding the existence of

    17a transnational constitution. This, however, is not necessarily the case because transnational

    legitimacy] and empirical acceptance of democratic institutions. A Hurrelmann, „European Democracy, the “Permissive Consensus” and the collapse of the EU Constitution‟ (2007) ELJ 343 at p. 348. 11 D Castiglione (n 8). 12 Hesse and Johnson (eds), Constitutional Policy and Change in Europe (OUP, Oxford 1995) at p.34. 13 Curtin, Post national democracy: The European Union in Search of a Political Philosophy (Kluwer Law

    International, The Hague 1997) at p.2. 14 N Tsagourias, „Constitutionalism: a Theoretical Roadmap‟ in N Tsagourias (ed), Transnational

    Constitutionalism (CUP, Cambridge 2007) at p.5. 15 A demos is a people united by a common culture and heritage. 16 Brunner [1994] 1 CMLR 57 (German Maastricht Decision). 17 Grimm, „Does Europe Need a Constitution‟ (1995) 1 ELJ 282.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    constitutionalism may be more about normative neutrality and accommodation of differences

    18than about projection of a common value system.

The Constitution of the European Union

    It is important to distinguish the European Union both from a state and a classical intergovernmental organisation. In terms of its constitution, the European Union is distinct

    19from both of these entities. The EU is an entity within the international legal order, created by states which inhabit that legal order. However, these states share common principles such as peace, human rights, democracy and the rule of law. It is these principles that define the EU as a distinct legal order within the international legal order; attribute legitimacy; ensure

    20legal coherence; foster unity; and provide orientation. Unlike international law, the

    21European legal order affects individuals directly, rather than through their states. There is

    also a mutual interaction between the national and European legal orders which leads to a

    22Europeanization of national law and a domestication of European law. All of the above has

    allowed the European Union to grow an indigenous constitution and claim constitutional


The British Constitution

    Having already demonstrated that the EU possesses a constitution, it is now appropriate to define the nature of this constitution. Whilst it is true that the legitimacy of such a

     18 N Tsagourias (n 14) at p.6 19 N Tsagourias, „The Constitutional Role of General Principles of Law in International and European Jurisprudence, in N Tsagourias (ed), Transnational Constitutionalism at p. 87. 20 Ibid. p. 82. 21 Case 26/62, Van Gend en Loos, [1963] ECR 1; E. Stein, „Lawyers, Judges and the making of a Transnational

    Constitution, (1981) 75 AJCL 1. 22 F Snyder, The Europeanization of Law, (European Law Series, Hart Publishing, Oxford 2000) pp. 1-11; M

    Poiares Maduro, „The Importance of Being Called a Constitution: Constitutional Authority and the Authority of Constitutionalism‟, (2005) 3 ICON 332 at pp. 338-9. 23 N Tsagourias (N 19) at p. 83.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    constitution must be conceived of in non-statal terms, it is useful to draw analogies with existing state constitutions to inform our conceptions of the structure of the EU‟s constitution.

    Particularly helpful in this regard is the analogy between the partially written but uncodified British constitution and that of the EU. In order to create an analytical framework for EU constitutionalism that is based on British constitutionalism it is necessary to study the latter in some depth. This will then form the basis of the discussion that follows on how the British constitutional model can be applied to the EU.

    Unlike the civil law jurisdictions of Europe, the United Kingdom does not have a formal, written text as its constitution. Instead the United Kingdom has a common-law constitution

    24with parliamentary supremacy as its “keystone”. In orthodox theory of parliamentary

    2526supremacy, parliament is seen as having legal sovereignty to pass any law, with political

    27sovereignty resting with the electorate. It is on this basis that parliament can be said to

    28derive its moral legitimacy from democratic principles. Dicey, the pre-eminent authority on

    British constitutional law, considered that these democratic principles could act as internal checks on the exercise of legislative power because parliament is unlikely to legislate

    29contrary to fundamental ideals that are central to its belief system. Such fundamental ideals

     24 W Blackstone, Commentaries on the Laws of England (Portland 1807); A V Dicey, Introduction to the Study thof the Laws of the Constitution (10 ed 1965) at p. 70. 25 G Winterton, „The British Grundnorm: Parliamentary Supremacy Re-examined‟, (1976) 92 Law Q. Rev. 591

    at p. 597: „nowhere is the development of this doctrine [of parliamentary supremacy] demonstrated more clearly than in the writings of Blackstone and Dicey‟. 26 W Blackstone (n 24) at p. 156: „[Parliament‟s authority is] so transcendent and absolute, that it cannot be

    confined, either for causes or persons, within any bounds…. It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament‟. 27 A V Dicey (n 24) at p. 73: „The sovereign power under the English constitution is clearly “Parliament.” But the word “sovereignty” is sometimes employed in a political rather than strictly legal sense. That body is “politically” sovereign or supreme in a state the will of which is ultimately obeyed by the citizens of the state. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps, in strict accuracy, independently of the King and the Peers, the body in which sovereign power is vested‟. 28 Lord Irvine of Lairg, „Sovereignty in Comparative Perspective: Constitutionalism in Britain and America‟,

    (2001) 76 N.Y.U.L. Rev. 1 at p. 13-14. 29 A V Dicey (n 24) at p. 80.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    in the British context would seem to be respect for representative government, democratic

    30accountability and the rule of law. However, despite these internal checks, nobody is legally

    31competent, in the view of exponents of orthodox constitutional theory, to curtail the

    authority of parliament, not even the judiciary.

    Prima facie, this notion of absolute parliamentary supremacy does not seem to accord with the modern view of constitutionalism, as outlined above, which seeks to limit the exercise of legislative power. Furthermore, the lack of possibility of judicial review of primary

    32legislation passed by the British parliament does not seem to fully accord with the rule of

    33law, which is said to be a fundamental principle of British constitutional law. Orthodox

    constitutional theory is, however, only one interpretation of British constitutional law. The early colonists in America, for example, took a different view. They based the restraints on the exercise of parliamentary authority that emerged after the American Revolution on a

    34different interpretation of the British common law. This forms the basis of the strong power

    35of judicial review that is vested in the American Supreme Court.

    36Many modern British constitutionalists believe that the common law power of the courts to

    37strike down executive acts that are ultra vires could be used as the basis for arguing the

     30 D W Vick, „The Human Rights Act and the British Constitution‟, 37 Tex. Int‟l L.J. 329 at p. 330. 31 W Blackstone (n 24) at p. 91: „if the parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it‟. 32 A W Bradley, „The United Kingdom, the European Court of Human Rights, and Constitutional Review‟, 17 Carodozo L. Rev. 233 at pp. 233-34. 33 D W Vick (n 30). 34 B Bailyn, The Ideological Origins of the American Revolution (OUP, Oxford 1967) at pp.30-31. These

    restraints on parliament were found in the common law principles that protected Englishmen from arbitrary or unchecked government authority. 35 Marbury v. Madison, 5 U.S. 137 (1803). 36 T R S Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Clarendon Press,

    Oxford 1993) at pp. 269-70; C Forsyth, „Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the

    Sovereignty of Parliament and Judicial Review‟, 1996 Cambridge L.J. 122 at pp. 122-23; S De Smith et al.,

    Principles of Judicial Review (Sweet and Maxwell, London 1999) at p. 112-13; J Laws, „Law and Democracy‟,

    1995 Pub. L 72 at p. 79.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    existence of a common law power of judicial review of primary legislative acts. As one writer puts it:

    The ultra vires an independent common-law judicial power. This common-law

    position enhances the judiciary as an independent branch of government inherently capable of 38substantively scrutinizing executive acts, as well as the authorizing statute

    Furthermore, this power of judicial review is not inconsistent with the doctrine of parliamentary sovereignty because parliament is theoretically capable of expressly revoking

    39the court‟s power as it is with any common-law principle. Similarly this extension of the

    court‟s inherent power of judicial review is in conformity with the natural law and rule of law limitations on parliament found in orthodox constitutional theory, as articulated by

    40Blackstone and Dicey. In a constitutional democracy, judicial review of both primary and

    41secondary legislation, whilst not being a pre-requisite, is the most suitable means of

    42ensuring legislative and executive compliance with constitutional limits. Therefore, this

    alternative view of British Constitutionalism, whilst firmly anchored in British common

    43law, is more in line with the constitutional arrangements of other EU member states in continental Europe.

    In continental Europe, as in the United States of America, reference is made in the first instance to the text of a written constitution in order to determine the constitutional principles of a given country. Conversely, in Britain, constitutional principles were traditionally derived

     37 S De Smith et al. ibid. 38 D Jenkins, „From Unwritten to Written: Transformation in the British Common-Law Constitution‟, 36 Vand.

    J. Transnat‟l L. 863 at p. 879. 39 A Halpin, „The Theoretical Controversy Concerning Judicial Review‟, 64 Mod. L. Rev. 500 at p. 501. 40 P Craig, „Competing Models of Judicial Review‟, 1999 Pub. L. 428 at p. 445. 41 D Grimm, „Constitutional Adjudication and Democracy‟ in D W Jackson and C N Tate (eds) Comparative

    Judicial Review and Public Policy volume 77 (Greenwood Press, Westport 1992) at p. 103. 42 A Stone, „Abstract Constitutional Review and Policy Making in Western Europe‟ in D W Jackson and C N Tate ibid. at p. 41. 43D Jenkins, (N 38) at p. 880: „This version of common-law review, compatible as it is with Coke, Blackstone,

    and Dicey, represents the resurgence of a theory of judicial review that has long roots in British legal history‟.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    44directly from the unwritten common-law. However, written and unwritten elements are not

    45mutually exclusive and both may be present in a constitutional system. This is particularly

    evident in Britain where the lack of a formal constitution has not precluded reference to certain written documents which have a special constitutional status. Examples of such

    4647documents are the Parliament Act 1911, the European Communities Act 1972, the

    4849Scotland Act 1998 and the Human Rights Act 1998. The importance of these statutes is

    not their legally binding force, because parliament can repeal them at any time, but rather

    50their impact on UK Constitutionalism, due to their political entrenchment.

A British Model of EU Constitutionalism

    The above account of UK constitutional law may seem somewhat tangential and out of place in this discussion of EU constitutionalism. However, this essay is an attempt to extend, by analogy, the principles of the British common-law constitution to that of the European Union. Therefore, it is essential to understand the core elements of the British constitution as a framework for this comparison.

    It is quite striking, when examined in this manner, how many similarities there are between the constitutional arrangements of these two polities. Firstly, it is interesting to note that neither Britain nor the EU have a single text from which constitutional principles may be derived. However, both systems have several texts which have a special status and embody

     44 D A Strauss, Common Law Constitutional Interpretation, (1996) 63 U. Chi. L. Rev. 877 at p. 885. 45 R H Fallon, Implementing the Constitution (Harvard University Press, Cambridge MA 2001) at p. 111. 46 This statute set limits on the powers of the House of Lords in regard to legislation. 47 This statute incorporated the Treaty Establishing the European Community (Treaty of Rome) and in so doing placed limitations on the principle of parliamentary sovereignty. 48 This along with the Government of Wales Act 1998 and the Northern Ireland Act 1998 set out the principles for devolution. 49 This acts almost like a bill of rights as it incorporates the ECHR directly into British domestic law. 50 The nature of constitutional statutes was commented on by Lord Justice Laws in Thoburn v. Sunderland City

    Council [2003] 3 WLR 247 and is discussed in R Hazell, Reinventing the Constitution: Can the State Survive?‟,

    1999 Pub. L. 84 at pp. 84-87.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    51fundamental principles upon which each entity is founded. In addition to this, many of the

    constitutional principles which characterise the EU have been judge-made rather than being expressly referred to in the founding treaties.

    In this analogy, there appears to be several direct comparisons that can be made between concepts of British constitutional law and practices within the European Union. The first striking example of this is the similarity between the notion of parliamentary supremacy, on

    52the one hand, and the member states as masters of the treaties on the other. As regards the

    53former, legal supremacy is vested in the British Parliament in Westminster, and in the latter

    case, legal supremacy is vested in the member states acting collectively at an inter-

    54governmental conference and through subsequent ratification. Both bodies (Parliament and

    the IGC) have absolute legal sovereignty and are capable of passing any law they see fit.

    In addition to this, there is a certain similarity between the evolution of constitutional principles in the British common-law and the teleological interpretation of the treaties by the

    5556European Court of Justice. As Weiler demonstrates, many of the main fundamental

    principles that define the European Union as a constitutional legal order were established by

     51 As regards the EU such texts ,would include: The Treaty Establishing the European Community (Treaty of Rome), The Treaty on European Union (Maastricht Treaty) and the as yet non-ratified Lisbon Treaty. 52 Brunner (n 16). 53 Henceforth referred to simply as Parliament. This is short hand for the procedure whereby an act is approved not only by the House of Commons but also by the House of Lords and then receives Royal assent. 54 Henceforth referred to simply as IGC. The procedure whereby treaties must be ratified by national parliaments after being signed at an IGC can be seen as somewhat analogous to the procedure in the British Parliament ibid. 55 Henceforth referred to as the ECJ. 56 J H H Weiler „The Transformation of Europe‟ in J H H Weiler (ed) The Constitution of Europe (CUP,

    Cambridge 1999).


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    575859the ECJ. These include the doctrines of direct effect, supremacy, implied powers and

    60fundamental rights. In Weiler‟s opinion:

    The measure of creative interpretation of the Treaty was so great as to be consonant with a 61self-image of a constitutional court in a “constitutional” polity.

In the present author‟s opinion, this is a strong example of how the European Court of Justice

    derives constitutional principles directly from the acquis communautaire, which encompasses

    ECJ case-law and general principles as well as the treaties, rather than from any specific textual source. This seems to bear more similarity with the British common-law approach to constitutionalism than it does to the rigid textual approach of many continental European legal systems.

    These judicially created, constitutional doctrines only have full effect, however, as a result of

    6263the Community‟s strong system of judicial review. As mentioned previously, judicial

    review is a key means of upholding constitutional principles. Similar to the above discussion about parliamentary supremacy, the lack of judicial review of the founding Treaties of the EU could be seen as undermining its constitutional nature. A solution to this problem can be found by looking to British constitutional theory. It is here that the in-depth discussion above, about the possibility of judicial review of primary legislation in the UK, is particularly relevant.

     57 Established in the landmark case 26/62 Van Gend en Loos [1963] ECR 1; As Weiler puts it: „Community

    legal norms that are clear, precise and self-sufficient...must be regarded as the law of the land in the sphere of application of community law‟, J H H Weiler ibid. at p. 19. 58 Established in Case 6/64 Flaminio Costa v. ENEL [1964] ECR 585; According to Weiler „The combination of

    these two doctrines, [supremacy and direct effect], means that Community norms that produce direct effects are not merely the law of the land but the “higher law” of the land‟. J H H Weiler (n 56) at p. 22. 59 It was recognised in Case 22/70 Commission of the European Communities v. Council of the European

    Communities [1971] ECR 263 (ERTA) that the existence of an internal competence implies an external, treaty-making power on the part of the Community. 60 This doctrine was fully elaborated on in Case 11/70 Internationale Handelsgesellschaft v. Einfuhr- und

    Vorratstelle fur Getreide und Futtermittel [1970] ECR 1125. 61 Weiler (n. 56) at p. 24. 62 Weiler (n 56) at p. 25: „The constitutionalisation claim regarding the Treaties establishing the European Community can only be sustained by adding one more layer of analysis: the system of judicial remedies and enforcement‟. 63 A Stone (n 42).


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