EU Law and National Constitutions

List of contributors xii

Introduction: Constitutional dynamics of multi-level governance: indicators and hypotheses 1

ALBERTO NICOTINA, PATRICIA POPELIER AND PETER BURSENS

I.1 The questionnaire: aims and structure 4

I.1.1 Ratification of EU treaties 6

I.1.2 Judicial review of legislation 7

I.1.3 Parliamentary scrutiny in EU affairs 8

I.1.4 The role of subnational entities 9

I.2 Explaining the constitutional dynamics of multi-level governance: preliminary hypotheses 9

1 Belgium: A constitutional strategy in support of European integration - with some potential pitfalls 11

PATRICIA POPELIER AND PETER BURSENS

1.1 Treaty ratification 11

1.1.1 The ratification procedure 12

1.1.2 The political parties' position 17

1.2 Judicial review of legislation 19

1.2.1 The establishment of a system of constitutional review 19

1.2.2 The Constitutional Court: Europe-friendly 20

1.2.3 The Constitutional Court: Hesitant signs of resistance 21

1.3 Parliamentary scrutiny in EU affairs 25

1.4 The role of subnational entities 27

1.5 Conclusion 30

2 France: From progressive acceptance to recent tension 33

DOMINIQUE RITLENG

2.1 European treaty ratification and the French Constitution 33

2.1.1 The ratification procedure 33

2.1.2 Substantive requirements 35

2.1.3 The political debate about EU membership 40

2.2 Primacy of EU law, supremacy of the Constitution, and judicial review of EU law 43

2.2.1 From the acceptance of the primacy of EU law... 43

2.2.2 ... to the guarantee of the supremacy of the French constitution 46

2.3 Parliamentary scrutiny 50

2.3.1 The scrutiny over the action of the executive in EU affairs 50

2.3.2 The control of compliance with the principle of subsidiarity 51

2.4 The role of subnational entities 53

2.5 Conclusion 53

3 Germany: Basic Law and European integration - open but defensive statehood despite a constitutional obligation to EU integration 54

WOLFGANG WEIss

3.1 Introduction 54

3.2 Treaty ratification 55

3.2.1 Starting Point: The Basic Law's open statehood 55

3.2.2 The Europe clause: The specific EU integration provision of Article 23 BL, its expansion by complementary legislation, and the role of legal academia 59

3.3 Judicial review of legislation: The German Federal Constitutional Court and EU integration 65

3.3.1 The role of the FCC in judicial review of EU integration 65

3.3.2 Centralised constitutional review and EU law 72

3.4 Parliamentary scrutiny in EU affairs 72

3.5 The role of subnational entities 75

3.6 Conclusion 84

4 Italy: The long-term consequences of an "efficiency" constitutional strategy in the face of multi-level governance 86

ALBERTO NICOTINA

4.1 Treaty ratification 86

4.1.1 The post-war scenario and the "authorisation model" 86

4.1.2 The role of political parties from First to Second Republic 89

4.2 Judicial review of legislation 94

4.2.1 The establishment of the Italian Constitutional Court 94

4.2.2 EU law and the Italian legal order: The evolution of a traditionally dualist country 95

4.2.3 Open but defensive: the evolution of the "counter-limits" doctrine 97

4.3 Parliamentary scrutiny in EU affairs 100

4.3.1 "Ascending phase": parliamentary participation in EU decision-making 100

4.3.2 "Descending phase": the implementation of EU law 104

4.4 The role of subnational entities 104

4.5 Conclusion 107

5 Luxembourg: An EU-supportive constitutional system (still) in evolution 109

BIANCA NALBANDIAN

5.1 Introduction 109

5.2 Treaty ratification 111

5.2.1 Current treaty ratification procedure 112

5.2.2 Treaty ratification procedure evolution 115

5.2.3 Latest constitutional reviews: The Parliamentary dossier no. 6030 and the 2019 reform 119

5.2.4 Political debate 121

5.3 Judicial review of legislation 123

5.4 Parliamentary scrutiny in EU affairs 125

5.5 The role of subnational entities 127

5.6 Conclusion 129

6 The Netherlands: A political commitment to Europe in a pragmatic constitutional culture 130

MONICA CLAES AND MAARTEN STREMLER

6.1 Introduction 130

6.2 Treaty ratification 131

6.2.1 The ratification of the EU treaties 131

6.2.2 The position of political parties 135

6.3 Judicial review of legislation 138

6.3.1 Constitutional review in the Netherlands: no role for the courts 138

6.3.2 The primacy of EU law in the Netherlands 140

6.4 Parliamentary scrutiny 142

6.4.1 Parliamentary control of the executive in EU

affairs 142

6.4.2 EU affairs in the national political debate 144

6.5 Conclusions 146

7 The United Kingdom: The constitutional consequences of ambivalence towards European integration 148

BRICE DICKSON

7.1 Treaty ratification 148

7.1.1 Debates about joining the EEC 148

7.1.2 The European treaties and the UK's constitution 149

7.1.3 Post-accession Euroscepticism 151

7.1.4 Margaret Thatcher's premiership 153

7.1.5 Increasing Conservative and Labour Euroscepticism 154

7.1.6 Conservative governments since 2010 155

7.1.7 Anti-EU political parties 156

7.1.8 The Brexit referendum and the first Miller case 157

7.1.9 The Brexit deal and the second Miller case 159

7.2 Judicial review of legislation 162

7.3 Parliamentary scrutiny of EU affairs 165

7.4 The role of sub-national entities 167

7.5 Conclusion 171

8 Denmark: Revisiting the opt-outs in Denmark: a renewed focus on EU integration 172

SUNE KLINGE

8.1 Treaty ratification 172

8.1.1 Constitutional framework of ratification of EU

Treaties 173

8.1.2 The political and historical background to the opt-out of the EU membership 175

8.2 Judicial review of (EU) legislation 178

8.2.1 The doctrine of supremacy of EU law over national law under Danish law 178

8.3 Parliamentary scrutiny 181

8.3.1 The parliamentary control over the executive in EU affairs 181

8.3.2 EU affairs in the national political debate 183

8.4 The role of subnational entities 185

8.4.1 Autonomous territories and the relationship to Denmark and the EU 185

8.4.2 Decentralised geographic organisation 187

8.5 Conclusion 187

9 Portugal: A European Union-friendly jurisdiction 190

CATARINA SANTOS BOTELHO AND MARTA VICENTE

9.1 Treaty ratification 190

9.1.1 Portugal's accession to the European Union 190

9.1.2 The EU and constitutional amendments 191

9.1.3 Leaving the EU 194

9.2 Ratification and the role of referenda 195

9.2.1 Constitutional procedure for the ratification of international treaties under the 1976 Constitution 195

9.2.2 Referenda under the original version of the 1976

Constitution 196

9.2.3 Constitutional evolution: paving the way for EU referenda 196

9.2.4 The role of Portuguese political parties in EU referenda 197

9.2.5 The role of the Constitutional Court in preventing EU referenda 198

9.3 Judicial review of legislation 200

9.3.1 Overview of the Portuguese constitutional review model 200

9.3.2 Ex ante control of EU law (as well of constitutional amendments triggered by EU law) 201

9.3.3 Ex post control of EU law and the principle of primacy 202

9.4 Parliamentary scrutiny 205

9.5 The role of subnational entities 207

9.6 Conclusions 211

10 Czech Republic: The tale of two and a half presidents: identifying the key discursive struggles that shaped Czech integration 212

PETR AGHA

10.1 Introduction 212

10.2 Treaty ratification 212

10.3 Parliamentary scrutiny in EU affairs 216

10.4 Judicial review of legislation 222

10.5 The role of subnational entities 229

10.6 Conclusions 229

11 Hungary: From a friend to a foe? 231

ATTILA VINCZE

11.1 Treaty ratification 231

11.1.1 The constitutional system in a nutshell 231

11.1.2 Treaty ratification 232

11.1.3 Procedural requirements 234

11.1.4 Substantial requirements 235

11.1.5 The political debate on membership - from Europhile consensus to dirty membership 237

11.2 Judicial review of legislation 243

11.2.1 Constitutional review in general 243

11.2.2 The doctrine of supremacy in the case law of the Constitutional Court 245

11.3 Parliamentary scrutiny in EU affairs 250

11.4 The role of subnational entities 252

11.5 Conclusion 252

12 Poland: From cautious EU-friendliness to illiberal Euroscepticism 254

ALEKSANDRA KUSTRA-ROGATKA

12.1 Treaty ratification 254

12.1.1 Poland's way to the EU 254

12.1.2 The role of the political parties in shaping Poland's European politics 255

12.1.3 The tentative framing of the "integration clause" in the Polish Constitution of 1997 259

12.1.4 The "European clause" in action. Legal and political reasons for the application (or non-application) of Article 90 of the Constitution. 261

12.2 Judicial review of legislation 263

12.2.1 The scope of the Polish Constitutional Tribunal's competences with regard to EU law 263

12.2.2 Judicial review of EU law before 2015 265

12.2.3 Judicial review of EU law after 2015 269

12.3 Parliamentary scrutiny in EU affairs 272

12.4 The role of sub-national entities 275

12.5 Conclusion 276

Conclusions: Building the founding blocks of a new bottom-up constitutional theory of EU integration 279

ALBERTO NICOTINA, PATRICIA POPELIER AND PETER BURSENS

C.1 Introduction 279

C.2 What role for national constitutional actors in EU integration? A comparative overview 279

C.2.1 National parliaments 279

C.2.2 Courts 282

C.2.3 Subnational entities 285

C.3 Testing the research hypotheses: Avenues for future research 286

C.3.1 National constitutional cultures in the face of EU integration 286

C.3.2 Political strategies vs constitutional strategies: Are Eurosceptic political parties able to determine a constitutional change? 288

C.3.3 Subnational constitutional strategies: What role for EU regions? 289

C.4 Concluding remarks 290

Index 293