Constitutional Processes: The Interaction between the National and the European Dimension
Introduction - Research Themes - Context
In recent years, academic scholarship about institutional structures in the European Union has been flourishing. This has contributed to institutional reforms as reflected in the Treaty of Lisbon, albeit to a limited extent. Further developments in the institutional sphere are to be expected. In part, these developments run parallel to processes that have taken place on a national level in the past. During the 19th and 20th century, common traditions with regard to democracy, human rights and the rule of law have emerged in the western world. It is generally recognized that these traditions form the basis of the constitutional structure that we find at the European Union level. Article 6(1) of the Treaty on the European Union states that the Union is built upon the basic principles of freedom, democracy, respect for human rights and fundamental freedoms, as well as the rule of law, all of which are common to the Member States.
In this context, the aim of this research programme is threefold. First and foremost, on the basis comparative legal research, this programme will attempt to identify differences as well as similarities between different legal systems. For national and European decision-making it has become increasingly important to broaden one’s view beyond borders to rules and principles of other constitutional systems. Decision-making elsewhere has gradually gained more influence on what happens in one’s own legal system. Therefore, it is of utmost importance to extend one’s knowledge about and insight into other constitutional systems in order to explore what one can learn from one another. Because of the origin and expertise of the majority of the researchers, emphasis is thereby placed on Dutch law.
Second, the comparative legal research aims at providing building blocks for identification of common principles on a constitutional level which could provide a foundation for future development of a European legal order. This is especially the case when it comes to the constitutional interrelation between the different organs of the European Union, in particular the European Parliament, the Council of Ministers and the European Commission. In this respect, a significant question is how this relation based on the principles of democracy and separation of powers should be further developed and, in doing so, to what extent in how far one can build upon the usual models in the parliamentary systems of Member States. Further convergence can also be recognized with regards to fundamental rights. Traditionally, the European Court of Human Rights and the Court of Justice of the European Union have been playing a major role in this development.
Finally, the programme focuses on the process of converging constitutional structures. International, European and national legal systems are becoming increasingly interwoven. This is also apparent at the constitutional level. Public tasks are commonly prepared on several levels (international, European, national), regulated and exercised. This development is known as multi-level governance. National organs are granted authority on a European level and vice versa. The question is what this entanglement in constitutional terms means. What are the consequences of this ongoing process of interweaving legal systems for traditional constitutional structures and how is public accountability to be constructed for such forms of multi-level decision-making? In a broader sense, the question is how the principles of democracy, fundamental rights and the rule of law are to be adhered to in a situation of increasing entanglement of government and authorities.
Based on these underlying questions, the research programme will be focusing on the following main topics:
Constitutionalisation in a Multi-Layered Legal Order
This research theme concerns the specific characterics of the constitutionalisation of the European legal system. This takes place on different levels (national and European) and has, next to constitutional aspects, also political and (legal) cultural implications. The research is therefore concentrated on the constitutional developments in the European Union, including the interaction between constitutional processes in Member States and their influence on the EU. The study of the development of a European constitutional law will in part focus on its layered structure which - at least in an EU context - is characterized by two main principles: institutional autonomy and cooperation. In addition, the research programme will cover the influence of constitutional developments in non-EU countries on EU- countries, as well as the European Union itself (and vice versa). This includes, inter alia, the institutional relations between centralized and decentralized governments, including analogies with structures of federal systems. In this framework attention is paid to the meaning of EU law for the parts of the Kingdom of the Netherlands that are geographically not situated in Europe.
Important in this respect are the principles of direct effect and supremacy of European law in the national legal orders. This includes the evolution and acceptance of the “classic” doctrines which structure the relation between the different layers, such as direct effect and supremacy. These doctrines have taken on new dimensions by the quantitative and qualitative expansion of the EU. At the same time, the requirements of the principles of the rule of law will have to be complied with in the context of the respective legal orders, both in national and supranational as well as transnational relations. As this leads to tensions, these issues will have to be examined more closely.
Democracy, Separation of Powers and Accountability
The second main theme concentrates on the principles of democracy, separation of powers and accountability. This concerns primarily the design of national and EU-institutions, their competences, the allocation of tasks as well as the available instruments. In this context, different principles play a major role. First, there is the principle of democracy. One of the most important criticisms raised regarding the process of European integration concerns the democratic deficit in European decision-making. In this debate, a prominent and always recurring aspect is the position of parliaments. As legislatures are often regarded as the crucial factor when it comes to the strengthening of democracy in Europe, the research programme will pay particular attention to the position of parliaments, on a European as well as national level.
Second, the principle of separation of powers plays a major role with regards to the structure of the European legal system. Primarily, this seems to concern the horizontal allocation of competences (i.e. between different institutions) in the European Union. The complex structure of the Union, based on an entanglement of horizontal and vertical allocation of competences and tasks, requires close attention to the legal orders of the Member States (including subnational entities). This means that the influence of EU- law on the national separation of powers will also be subject to research. The separation of powers discourse is especially manifest in the appearance of independent agencies and the number of market regulators, as well as in the growing transnational cooperation between Member States. This includes cooperation between Euro-regions, regulators, other independent agencies and between several bodies in criminal matters such as Europol, Eurojust and a European Prosecution Office.
The principles of democracy and separation of powers are closely connected to the principle of accountability. A continuing source of public debate is the manner in which the – usually not democratically elected – executive administration has to be held accountable. The content of political and other accountability mechanisms depends on the perception in the existing constitutional order on central doctrines such as democracy, separation of powers (checks and balances), sovereignty and political accountability and responsibility. The meaning of these concepts and doctrines must be found in the context of the country-specific governmental systems. The character and dimensions of accountability mechanisms are inter alia dependent on parliamentary competences, the position of the executive, the existence or non-existence of more, or less, independent administrative agencies operating at arms length from the government and the position of the citizen as well as “civil society” in the process of accountability. Generally, it will be examined to what extent one can speak of common foundations within the European Union and its Member States when it comes to accountability in all its different shapes and sizes. Central topics in this area are the constitutional position of public servants, the control of independent agencies, parliamentary control and inquiry powers, and the role of national parliaments in the European Union. Accordingly, the position of parliaments is also in this context of principle importance.
Fundamental Rights and the Rule of Law
It is important to realize that the development of an EU legal system runs parallel and goes hand in hand with the increasing role of the Council of Europe in the protection of human rights and fundamental principles of law. The debate is primarily focused to the role of the European Convention on Human Rights (ECHR), but next to that there are several other instruments available that have emerged within the Council of Europe framework that are of increasing importance. One can point to the European Social Charter, but also at the treaties concerning cooperation in criminal matters that eventually address the rights of individuals. In a way, it can be said that the institutional development of 'Europe' takes place within the context of these fundamental norms. Attention to these developments is therefore crucial.
Within the topic at hand not only content and effect of treaty norms stipulated in inter alia the ECHR and the ESC, but also the issue of fundamental rights in the interaction between the EU, the European Council and national constitutional law has to be considered. Of central importance are questions concerning EU adherence to Council of Europe norms. The EU Charter of Fundamental Rights, which will have binding effect on the basis of the Lisbon Treaty, plays an important role in this context. In a broader sense, the question arises as to how the EU Charter, other human rights treaties such as the ECHR and the ESC, and national fundamental rights are related to each other and in which manner this relation will be incorporated in the case law of Strasbourg and Luxembourg and in national case law.
When it comes to effective protection of fundamental rights, courts are the crucial players. Therefore, this part of the programme will also be focusing on the question as to how fundamental rights are protected through the case law of European and national judges. The question that often appears central in the case law is to what extent restrictions on certain fundamental rights are justified. In that respect, the judge will have to determine firstly whether the restriction is “provided by law” and has therefore to determine if the national rule complies with the qualitative requirements the ECHR stipulates. Moreover, the judge will in many instances (i.e. articles 8-11 ECHR) have to determine whether the national law or the application thereof is “necessary in a democratic society”. The examination of this norm often results in the balancing of conflicting interests. In the course of the research programme, attention will be paid to the issue as to how the courts exercise this examination on the aforementioned grounds and how the Strasbourg, Luxemburg and national judges interrelate. The programme will also focus on the emerging development of positive obligations in European human rights case law.
The abovementioned themes of research are mainly carried out within the context of current research projects or within projects starting in the near future. In that sense, the programme builds upon the former research programme titled “Ius commune and public law”, more specifically the sub-programme on comparative public law. The current programme, however, has a much more expanded European legal dimension. Research will mainly be conducted by legal researchers with constitutional expertise at the law faculties of the University of Amsterdam, Utrecht University and Maastricht University. In several areas, researchers of other faculties will participate. As the research programme cannot be seen independently of the other Ius Commune programmes with a public law dimension, researchers will cooperate closely with colleagues in other programmes where there are areas of common interest.