The new revision of the old constitution

International Journal of Constitutional Law

Volumn 3, Issue 2-3, 2005, Pages 383-404

  Pfersmann, Otto ^a  

^a UNIVERSITÉ PARIS 1 PANTHÉON SORBONNE   (France)

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[No Author keywords available]

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EID: 31344471736     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moi025     Document Type: Article

References (44)

1. For editorial reasons, footnotes refer only to relevant legal material, not to doctrinal writing (with the exception of footnote four). Conference of the Representatives of the Governments of the Member States, Provisional consolidated version of the draft Treaty establishing a Constitution for Europe, CIG 86/04 (June 25, 2004), available at http://ue.eu.int/igcpdf/en/04/cg00/cg00086.en04.pdf; I shall use "DT" for Draft Treaty Establishing a Constitution for Europe, 2003 O.J. (C 169) 1 (the document given by the Convention to the European Council); "CT" ("Constitutional Treaty") for Treaty establishing a Constitution for Europe, 2004 O.J. (C 310) 1 (the document adopted by the intergovernmental conference (IGC) and now open for international ratification); and "TECE" for the future Treaty establishing a Constitution for Europe, considered not as a text but, rather, as a set of norms.
2. Of course, the new Union will be something different in the sense that it will legally absorb the former Union and the former European Community (CT art. IV-438), though not Euratom, and it will be endowed with legal personality, whereas formerly it only embraced the "pillars." Nonetheless the new Union is mainly a different verbal construction of an entity that will not otherwise change, as the new treaty so provides.
3. Case 294/83, Parti Ecologiste 'Les Verts' v. Parliament, [1986] ECR 1339;
4. see also Opinion 1/91, [1991] ECR I-6079 (on the European Economic Area);
5. Opinion 2/94, [1996] ECR I-1759 (on the European Court of Human Rights (ECHR)).
6. This position may be characterized, schematically, as exclusive analytic positivism. However debatable this conception may appear, the point that is developed here can be discussed in its own right and need not be lost in foundational quarrels, however fascinating these may be. Elements of my own constitutional theory are more fully outlined in Otto Pfersmann, La révision constitutionnelle en Autriche et en Allemagne: théorie, pratique et limites [Constitutional revision in Austria and Germany: Theory, practice, and limitations], in Association Française des Constitutionnalistes, La revision de la Constitution 7 (Economica 1993);
7. Droit constitutionnel (7th ed., Louis Favoreu et al. eds., Dalloz, Paris 2004).
8. A classical example was article 24 of the German Basic Law, according to which, "The Federation can transfer by legislation rights of sovereignty to international institutions," art. 24 para. 1 GG. Before the introduction of the new article 23, concerning the relations of Germany to the EU, this allowed for the attribution of competences to the EC by ordinary procedures, which explains the relatively easy path of European integration of Germany before Maastricht. I exclude the hypothesis in which a normative frame is replaced by another outside the rules of revision, i.e., a coup d'état.
9. In France, the constitutional modification of the "republican form of government," art. 89 para. 5 Const., is forbidden, as is that of the "State" in Italy, art. 138 Cost.; in Germany, specific provisions are excluded from revision, art. 79 para. 3 GG.
10. Treaty on European Union (consolidated), 2002 O.J. (C325) 5, 31 [hereinafter TEU]
11. for previous examples, see art. 48 Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Act, 1997 O.J. (C 340) 1, 10;
12. art. N Treaty on European Union, 1992 O.J. (191);
13. art. 236 Treaty Establishing the European Community (1957), available at http://www.europa.eu.int/eur-lex/lex/en/treaties/treaties_founding.htm.
14. This applies even in the hypothesis of measures pursuant to article 7, paragraph 3 TEU, as the decision "to suspend certain of the rights deriving from the application of this Treaty" does not concern the modification of the treaty itself.
15. Treaty Establishing the European Coal and Steel Community (1951), available at http://www.europa.eu.int/eur-lex/lex/en/treaties/ treaties_founding.htm.
16. Id., art. 95.
17. See Declaration on the ratification of the Treaty establishing a Constitution for Europe, Conference of the Representatives of the Governments of the Member States, Provisional consolidated version of the Declarations to be annexed to the Final Act of the Intergovernmental Conference, CIG 86/04 ADD 2 (June 25, 2004), at 72, available at http://ue.eu.int/igcpdf/en/04/cg00/cg00086-ad02.en04.pdf;
18. in previous versions this was intended to be included in the treaty itself, see Secretariat of the European Convention, Part Three: General and final provisions, CONV 647/03 rty/AM/sjs (April 2, 2003), at 14, available at http://european-convention.eu.int/docs/Treaty/ CV00647.EN03.pdf.
19. Emphasis added.
20. Praesidium, Draft text of Part IV, with comments, CONV 728/03 (May 26, 2003), at 10, available at http://register.consilium.eu.int/pdf/en/03/ cv00/cv00728en03.pdf.
21. Id.
22. Franceurope, Discours introductif du président Valéry Giscard d'Estaing à la Convention sur l'avenir de l'Europe (Feb. 26, 2002), at 5, available at http://www.franceurope.org/pdf/contrib/ discours260202.pdf.
23. Giscard's "avant-projet" is still mute on that point, see Praesidium, Preliminary draft Constitutional Treaty, CONV 369/02 (Oct. 28, 2002), available at http://european-convention.eu.int/docs/sessPlen/ 00369.en2.pdf. Concerning the final provisions, one can find just the titles related to the revision of the Treaty, but void of any content.
24. See, e.g., European Parliament, Projet de traité européen sur l'Union européen dit ≪Projet Spinelli≫ [Project on the treaty establishing the European Union], art. 84 (Feb. 14, 1984) (setting the process for revision under the procedure for organic laws, i.e. two-thirds majority of expressed votes), available at http://www.franceurope.org/pdf/projet_spinelli.pdf
25. Robert Badinter, A European Constitution, CONV 317/02 (Sept 30, 2002), art. 81, at 51(leading to the least rigidity in terms of constitutional autonomy; revisions are adopted by a majority of two-thirds of the members the European Parliament);
26. Draft of a European Constitutional Treaty, in The Birth of a European Constitutional Order (Jürgen Schwarze ed., Nomos 2001), arts. 114-115 (requiring unanimity in Council and three-quarters of the "European Congress," an organ elected by members of the national as well as European Parliaments)
27. Andrew Duff, A Model Constitution for a Federal Union of Europe, CONV 234/02 (Sept. 3, 2002), art. 18, at 7
28. Elena Paciotti, A draft constitution for the European Union, CONV 335/02 (Nov. 19, 2002), arts. 117, at 42 (for the "Constitution" - which one is to suppose, although it is not precisely determined, the more "important" provisions - drafting power to a Convention, then IGC with a majority of four fifths and ratification by a majority of States totaling two-thirds of the European population), and 118, at 43 (for the "Treaty," i.e., the less important part, IGC, with two-thirds majority of representatives and ratification by a majority of States totaling two-thirds of the European population)
29. Brok, Constitution of the European Union, CONV 325/02 (Oct. 8, 2002), art. 180, at 89 (requiring assent of the European Parliament and ratification by all member states). All CONV documents are available at http://european-convention.eu.int.
30. See Secretariat of the European Convention, Summary sheet of proposals for amendments relating to the general and final provisions: Draft articles for Part Three (Article A to I), CONV 673/03 (April 14, 2003), at 16, available at http://register.consilium.eu.int/pdf/en/03/cv00/ cv00673en03.pdf.
31. European Commission, Feasibility Study. Contribution to a Preliminary Draft Constitution of the European Union Working Document, available at http://europa.eu.int/constitution/futurum/documents/offtext/ const051202_en.pdf.
32. See Andrew Duff, How to bring the Constitution into force, CONV 764/03 (May 28, 2003), available at http://register.consilium.eu.int/pdf/en/03/ cv00/cv00764en03.pdf.
33. CONV 728/03, supra note 13, at 4.
34. Id. at 10.
35. Id.
36. Enthusiasm is an important topic of his inaugural address, supra note 15.
37. European Convention, Oral Report presented to the European Council in Thessalonica, SN 173/03 (June 20, 2003), at 5, available at http://european-convention.cu.int/docs/Treaty/VGE_EN.pdf.
38. See generally Feasibility Study, supra note 19.
39. See Feasibility Study, art. 101, at 29.
40. A Constitution for the Union: Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of Member States' governments convened to revise the Treaty, COM(2003)548 final.
41. Id. at 8 [emphasis by Commission].
42. Id.
43. See, e.g., Presidency, IGC 2003 - Treaty Revision, CIG 46/03 (Nov. 11, 2003), available at http://ue.eu.int/igcpdf/en/03/cg00/cg00046.en03.pdf;
44. Presidency, IGC 2003 - Naples Ministerial Conclave: Presidency Proposal, CIG52/1/03 REV 1 (November 25, 2003), at 9, available at http://ue.eu.int/igcpdf/en/03/cg00/cg00052-re01.en03.pdf.