CONSTITUTIONAL IMPLICATIONS OF EU MEMBERSHIP: A VIEW FROM THE COMMISSION

Abstract

This article reviews the constitutional implications of EU membership from a European Commission perspective.
It first recalls the ratification procedures in both the old and the new Member States. The author identifies five different groups in this regard. A few Member States apply constitutional provisions on the ratification of international treaties. Others have recourse to a clause which refers to limitations of national sovereignty. The vast majority ratify the founding treaties or the Accession Treaty on the basis of a transfer/delegation of powers clause, or use a clause allowing the common exercise of powers. Finally, some Member States apply special constitutional procedures to bring about EU membership. Despite these theoretical differences, their impact on the actual procedure is less significant. Basically, European treaties are either ratified as other international treaties, or the required majorities in Parliament for ratification rises compared to the parliamentary majorities needed for ordinary international treaties. Sometimes, the need to hold an additional referendum arises, or special constitutional procedures need to be fulfilled.
Second, the article compares the domestic rank of European law. It shows that virtually all 27 Member States accept the supremacy of Community law over national statutes. This can be deduced from the text of the integration clauses or their function. The situation is different when it comes to the relationship between Community law and national constitutional law. Here, supremacy of Community law is either rejected, accepted or put under a reserve as regards basic constitutional principles.
Third, the paper lists specific constitutional clauses relating to EU matters. It shows that a number of Member States changed their constitutions to allow for voting rights for EU citizens in local elections. Furthermore, constitutional prohibitions to extradite nationals were lifted to be able to comply with the European Arrest Warrant. Moreover, bans on foreigners acquiring real property were abolished, as they were not compatible with the free movement of capital. Community rules on economic and monetary union triggered several amendments related to the independence and function of national banks. Finally, a few candidate countries modified their constitutions to align themselves with a rising corpus of ‘constitutional acquis’ relating to the independence of the judiciary.
The article concludes that the European Commission does not prescribe a specific method on how a candidate should address these issues. Rather, during the negotiations, it points to certain shortcomings as they arise in the negotiation chapters. There is an obligation of result to provide for the supremacy of Community law by accession. The choice on how and when to opt for a constitutional model which is best reconcilable with the candidate’s own national tradition certainly remains in the hands of the democratically elected representatives of the candidate country itself.