European Constitutional Law and Fundamental Rights Lecture Notes

Lectures: European Constitutional Law & Fundamental Rights


Week 1: The European Constitution in Crisis?
The EU “Constitution”
Does the EU have a constitution?
● Different views of what is a constitution
○ Functional
- A set of rules describing how power should be exercised
- In this context, the EU does have a constitution → Treaties


○ Normative
- Does it describe how powers should be exercised?
- Is there a set of rules that is based on: a) Separation of powers
- ART 4-6 TFEU → Vertical
(between EU & MS’s)
- ART 13 TEU → Horizontal
(between institutions)
b) Democracy
- ART 10(1) (2) TEU
- Voting in EP
- MS Parliaments
c) Fundamental Rights
- ART 6 TEU, Charter (binding)
- Accession ECHR
d) Rule of Law?
- ART 2 TEU, ART 19 TEU
- Values of the EU
- Access to independent Court
that ensures the law is applied
- CJEU observes the law
● Position of the CJEU clear → Les Verts (para 23)
○ “Treaties are the constitutional charter of the Union”
- How power must be exercised


The EU Constitution & Federal(?) Nature of the EU
The EU constitution constitutes an entity that is heavily interlinked with its component parts (MS’s)
- EU is boss over MS’s but also MS’s are boss over the EU


EU & Federalism
System based on self rule & shared rule with at least 2 levels of government who each operate on
the basis of their constitution → The EU cannot be a state

,Federal Origins
● Foedus → Contract (between whom?)
○ International Contract between sovereign states
- States as contracting parties → Would lead to peace


Federalism Today
● US Tradition (American constitution) → Splitting the atom of sovereignty
○ A middle ground between national & international law
- You can have 2 sovereigns in the same territory at the same time
- Citizens can be subject to both sovereigns


● The European Tradition
○ Sovereignty cannot be split → Indivisible sovereignty
- Federation is either a federal state or a creature of international law not
being a state


Critique based on Democratic Constitutionalism
● In Federalism
○ Peoples, sovereigns & constitutions may co-exist in the same territory


● Democratic constitutionalism → No European Demos
○ No European constitutions → No federal source of authority
- Only one people → Only one sovereignty & one constitution


How do we get out of this deadlock?
● Solution: EU is sui generis?
○ Not international law or national law → One of a kind
- Does not help us understand what it is


Dual vs Cooperative Federalism
1) Dual federations
- Strict separation of legislative & executive power (Vertical & horizontal)
- Emphasis not on “shared rule”
- Ex: Belgium, US


2) Cooperative federations
- Separation of powers less strict
- States are actors in the centre of power (states part of power at centre)
- Legislative, executive & judicial functions are “shared”
- Ex: Germany, EU → MS’s part of EU legislature

,Cooperative federalism in the EU
● Shared institutions
○ National & EU functions → Heads of state
● Shared democracy
○ ART 10 TEU
● Shared judiciary
○ All courts in the EU → Have an MS court & EU court
- Ensure the rule of EU law is guaranteed → PRP


The EU “Constitution” & the Rule of Law
● Rule of Law → Access to independent courts
○ Rule of law is an essential value → Because the EU started as a peace project
1) EU institutions must comply with the rule of law
- ART 2
2) Member States must also comply with the rule of law
- ART 49 TEU → Condition for accession


● Only one Court responsible for interpreting the validity of EU law → CJEU
○ Les Verts → “EEC is a community based on the rule of law”
- Whether or not you could start a case against the EP
- The rule of law is “supra-constitutional” → EP had to adhere as well
- Went above the importance of the Treaty


● Rule of law in legal theory
○ Minimalist (Formalist) view
- Does the RoL demand public power to be legally circumscribed, predictable
& excercised through clear procedural requirements & reviewable by courts?
- Rule by law Ex: Rosa Parks is wrong → Rule of bad law


○ Normative view
- Does the RoL also demand public power to conform to substantive
standards of democracy and human rights?
- There should be limitations

, What does the EU follow? Formal vs Substantive Rule of Law
● Black Letter Lawyer → Minimalist view
○ ART 2 Rule of law is next to fundamental rights & democracy


The Rule of Law Crisis in the EU & The Instruments to Address the Rule of Law
● The Rule of Law in the EU Member States → Crisis
○ EU developed tools to make sure the Rule of law is applied
1) ART 49 TEU → Accession
- Only states complying can accede to Rule of law
- Copenhagen Criteria
2) ART 7 TEU → Treaty of Amsterdam
- MS’s rights can be frozen/Suspended
- Ex: Voting rights
- Triggered for the first time by Poland & Hungary (not completed)
- Veto in favour of each other → Architectural flaw of ART 7
3) ART 47 Charter
- Right to independent court
- Limitation: Applies to the MS only when they apply EU law
4) ART 19(1)TEU (new)
- MS shall provide remedies to ensure sufficient legal protection in the
fields covered by EU law
5) Structured Dialogue


6) Power of the purse
- Financial
- Hit the MS where it hurts most → Money!!!


The “Power of the Purse”
● Conditionality Regulation → Links the access to EU funds to complying with the rule of law
○ Your judiciary must be independent
○ European Strcutural Investment Funds (ESIF)
○ Powerful tool to enforce the rule of law → Regulation is controversial
- Poland, Hungary against it
- Abusing the power of the purse?
- Can you buy the rule of law?
● Has limitations
○ Need to make a connection between the rule of law & the sound functioning of the
budget