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Published online by Cambridge University Press: 14 January 2020
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.
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.
1 On the role of parliaments in EU treaty making, see Closa, C, The Politics of Ratification of EU Treaties (Routledge, 2013)CrossRefGoogle Scholar.
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5 ‘Brown Rules out EU Referendum as Opponents Begin 3-Month Battle to Block Treaty’ (Evening Standard, 14 December 2007).
6 Michel Rose, ‘France's Macron Says EU Treaty Change “Not Taboo”’ (Reuters Business News, 15 May 2017).
7 ‘Reforming the Treaties’ Amendment Procedures’, Second Report on the Reorganisation of the European Union Treaties Submitted to the European Commission on 31 July 2000, Robert Schuman Centre for Advanced Studies, p 9.
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10 This Article draws extensively on Hodson, D and Maher, I, The Transformation of EU Treaty Making: The Rise of Parliaments, Referendums and Courts Since 1950 (Cambridge University Press, 2018)CrossRefGoogle Scholar. At the time of writing the UK is still a member of the EU and hence is included in references to Member States save where otherwise stated.
11 Korontzis, G, ‘Making the Treaty’ in Hollis, DB (ed), The Oxford Guide to Treaties (Oxford University Press, 2012), p 185Google Scholar. For this section see note 10 above, pp 1–34
12 Ibid, pp 195–201.
13 Vienna Convention on the Law of Treaties, Art 11, 23 May 1969, 1115 UNTS 331.
14 Even though the failed European Constitution had been the first time the convention was used. See Christiansen, T and Reh, C, Constitutionalizing the European Union (Palgrave Macmillan, 2009), p 242CrossRefGoogle Scholar; Art 48(3) TEU. The European Central Bank also is consulted in relation to institutional changes in the monetary area.
15 Article 48(1) TEU.
16 Article 48(2–5) TEU.
17 Article 48(6) TEU.
18 Pringle v Government of Ireland, C-370/12, EU:C:2012:756. Constitutional challenges were brought in Austria, Estonia, Germany, Hungary, Ireland, and Poland. See Reestman, J-H, ‘Legitimacy through Adjudication: The ESM Treaty and the Fiscal Compact before the National Courts’ in Beukers, T, de Witte, B, and Kilpatrick, C (eds), Constitutional Change through Euro-Crisis Law (Cambridge University Press 2017), pp 243–78CrossRefGoogle Scholar.
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20 Although legislation is sometimes required to bind the state internationally. See Sloss, D, ‘Domestic Application of Treaties’ in Hollis, D B (ed), Oxford Guide to Treaties (Oxford University Press, 2012), pp 367–95Google Scholar.
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23 Jennings, 1967, quoted in Albert, R, ‘How Unwritten Constitutional Norms Change Written Constitutions’ (2015) 38(2) Dublin University Law Journal 387Google Scholar. Wiener also notes their appropriateness. See Wiener, A, ‘Contested Meanings of Norms: A Research Framework’ (2007) 5(1) Comparative European Politics 1CrossRefGoogle Scholar.
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26 Art 10a Constitution of the Czech Republic. See also Art 23(1) Basic Law of the Federal Republic of Germany; Closa, C, The Politics of Ratification of EU Treaties (Routledge, 2013), pp 50–59CrossRefGoogle Scholar.
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28 See Sec 20 Constitutional Act of Denmark. Constitutional amendments are rare. See T Knudsen and U Jakobsen, The Danish Path to Democracy (Paper for the 2nd ECPR General Conference, Marburg, 18–21 September 2003), p 9.
29 Due to the differences between the written constitution and the functional constitution as a result of the separation of Cyprus in 1974, it exceptionally did not amend its Constitution to accede to the EU and constitutional amendment is not envisaged for future treaties. See Art 179(2) Constitution of the Republic of Cyprus; A Emilianides ‘Cyprus: Everything Changes and Nothing Remains the Same’ in S Farran, E Örücü, and Donlan, S P (eds), A Study of Mixed Legal Systems: Endangered, Entrenched or Blended (Ashgate 2014), p 236Google Scholar; Mendez, Mendez, and Triga, note 2 above, pp 227–28.
30 Constitutional Court of the Italian Republic, No 183/1973, Judgment. F Fontanelli and G Martinico, ‘Cooperative Antagonists: The Italian Constitutional Court and the Preliminary Reference: Are We Dealing with a Turning Point?’ (Eric Stein, 2008) Working Paper 5/2008, p 3.
31 Art 66 Treaty of Malta. The norm of not looking for constitutional amendment has been criticised. See A S Trigona, ‘A Sham Ratification’ (Times of Malta, 10 July 2012)
32 See Arts 91(3), 137 Constitution of the Kingdom of the Netherlands. The exception of course is the referendum around the European Constitution. If this is seen as introducing a new constitutional norm then The Netherlands would be categorised as constitutional amendments being rare.
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.
37 They can take place after ratification. See Art 114 Constitution of Luxembourg. See generally Gerkrath, J, ‘Constitutional Amendment in Luxembourg’ in Contiades, X (ed), Engineering Constitutional Change (Routledge, 2012), p 247Google Scholar.
38 Instrument of Government, chs 4, 5, 8, 10 (1974, amended to 2015).
39 Art 195 Constitution of Belgium; see also Claes, M ‘Constitutionalizing Europe at Its Source: The ‘European Clauses’ in the National Constitutions: Evolutions and Typology’ (2005) 24(1) Yearbook of European Law 86, 97CrossRefGoogle Scholar. C Behrendt ‘The Process of Constitutional Amendment in Belgium’ in Contiades, note 37 above, pp 35–50.
40 Art 73 Constitution of Finland.
41 Art 110 Constitution of Greece;Spyropoulos, P K and Fortsakis, T, Constitutional Law in Greece (Kluwer Law International 2009), pp 79–80Google Scholar.
42 Arts E(4), S(2) Fundamental Law of Hungary.
43 See eg Art 44 Austrian Constitution (amended in 2013). An explicit constitutional amendment is now required where a treaty is at odds with the constitution.
44 Art 10a Constitution of the Czech Republic. See T Dumbrovsky ‘Constitutional Change through Crisis Law: Czech Republic’ (2014) European University Institute: Fiesole. The President has to consent to international treaties and the President sought controversially, and ultimately unsuccessfully, to delay the ratification of the Lisbon Treaty. See Marek, D and Baum, M, The Czech Republic and the European Union (Routledge, 2010), p 49CrossRefGoogle Scholar.
45 Art 54 Constitution of the French Republic. See Closa, note 1 above, p 102.
46 Art 29.5.1 Constitution of Ireland.
47 Arts 95(1), 167–168 Spanish Constitution. The Constitution was revised for the Maastricht Treaty to allow European citizens votes in municipal elections. See Kumm, M and Comella, V F ‘The Primacy Clause of the Constitutional Treaty and the Future of Constitutional Conflict in the European Union’ (2010) 3 International Journal of Constitutional Law 475Google Scholar.
48 Art 143 Constitution of Croatia. Article 140 allows for delegation of powers to international organisations, reducing the need for a constitutional amendment for EU treaty revision.
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.
50 See Arts 68, 76 Constitution of Latvia. See also Rasnača, Z, Constitutional Change Through Euro Crisis Law: Latvia (European University Institute, 2013)Google Scholar.
51 Arts 148, 150 Constitution of the Republic of Lithuania. In fact, the constitutional amendment for the introduction was deemed to be unnecessary. See Case 22/2013, 24 January 2014.
52 Arts 89–90 Constitution of Poland; Zwolski, K ‘Euthanasia, Gay Marriages and Sovereignty: Polish Ratification of the Treaty of Lisbon’ (2009) 5(3) Journal of Contemporary European Research 493Google Scholar.
53 The European Union Act 2011 introduced referendums for many, but not all, Treaty revisions.
54 See Closa, note 1 above, pp 44–46.
55 On the difficulty of constitutional amendment relative to majorities required for approval, see the influential study of Lutz, D S, ‘Toward a Theory of Constitutional Amendment’ (1994) 88(2) American Political Science Review 360CrossRefGoogle Scholar.
56 For a study of this nature, see Hug, S and König, T, ‘In View of Ratification: Governmental Preferences and Domestic Constraints at the Amsterdam Intergovernmental Conference’ (2002) 56(02) International Organization 454CrossRefGoogle Scholar.
57 Cyprus, Denmark, Estonia, Latvia, Lithuania, Malta, and Portugal. In Denmark, treaties that do not transfer sovereignty—or more accurately that do not delegate powers ‘vested in the authorities of the Realm’—are passed by a simple majority. Treaties entailing such a transfer can be approved by Parliamentary channels alone by five-sixths of the members of the Folketing.
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.
65 Qvortrup, M, A Comparative Study of Referendums: Government by the People (Manchester University Press, 2005), p 1Google Scholar.
66 Cyprus, Law on Referendums 208/1989.
67 See Arts 106, 163 Constitution of the Estonian Republic.
68 Art 146 Basic Law of the Federal Republic of Germany. See also German Federal Constitutional Court, Judgment of the Second Senate, 2 BvE 2/08 (30 June 2009).
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.
73 See eg Arts 43, Article 49b Constitution of Austria; Pelinka, A and Greiderer, S ‘Austria: The Referendum as an Instrument of Internationalisation’ in Uleri, P V and Gallagher, M (eds), The Referendum Experience in Europe (Springer, 1996), pp 20–32CrossRefGoogle Scholar. Sweden allows for both binding and non-binding referendums favouring the latter. See Bernitz, U, ‘Sweden and the European Union: On Sweden's Implementation and Application of European Law’ (2001) 38(4) Common Market Law Review 903CrossRefGoogle Scholar.
74 Art 87 Constitution of Croatia.
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.
84 Austria; see also Art 146 Constitution of Germany.
85 Qvortrup, M, ‘The Three Referendums on the European Constitution Treaty in 2005’ (2006) 77(1) The Political Quarterly 89CrossRefGoogle Scholar.
86 Robertson defines constitutional reviews as ‘a process by which one institution, commonly called a constitutional court, has the constitutional authority to decide whether states or other decrees created by the rule-making institutions identified by the constitution are valid given the terms of the constitution’. See Robertson, D, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press, 2010), p 5CrossRefGoogle Scholar; Ginsberg, T and Versteeg, M, ‘Why Do Countries Adopt Constitutional Review?’ (2014) 20(3) Journal of Law, Economics, & Organization 587Google Scholar.
87 Ortiz, P J C, EU Treaties and the Judicial Politics of National Courts: A Law and Politics Approach (London: Routledge 2015), p 8CrossRefGoogle Scholar; see also Wendel, M ‘Lisbon before the Courts: Comparative Perspectives’ (2011) 7(1) European Constitutional Law Review 96CrossRefGoogle Scholar.
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.
96 For an analysis of the question of constitutional amendment, see Lutz, note 55 above. On treaty amendments, see Conca, K, An Unfinished Foundation: The United Nations and Global Environmental Governance (Oxford University Press, 2015)CrossRefGoogle Scholar. On EU treaty amendments, see Closa, C ‘Constitutional Rigidity and Procedures for Ratifying Constitutional Reforms in EU Member States’ in Benz, A and Knupling, F (eds), Changing Federal Constitutions: Lessons from International Comparison (Verlag Barbara Budrich, 2012), pp 281–310CrossRefGoogle Scholar.
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