Homogeneity and Constitutional Diversity in the EU : Protecting Fundamental Rights and the Rule of Law

Delledonne, Giacomo
(2016) Homogeneity and Constitutional Diversity in the EU : Protecting Fundamental Rights and the Rule of Law — Location: National University of Ireland Mayooth (23.February.2016)

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  • Delledonne, GiacomoUSL-B
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Abstract
In Autumn 1999, a general election was held in Austria. Due to the great electoral success of Jörg Haider’s Freedom Party (FPÖ), its participation in the new Austrian government became a realistic option. Such a perspective came under close European scrutiny because of some dubious statements which Haider had previously made. More recently, the Hungarian government which took office in 2010 has promoted a wide array of ambitious constitutional and legislative reforms. They resulted in an entirely new Fundamental Law and a set of controversial measures concerning, among others, the retirement age of judges, media pluralism, and the independence of the Central Bank and the Data Protection Authority. Constitutional crises arose in Romania in Summer 2012 and in Poland last Autumn: they witnessed of a reluctance of freshly elected governments to co-operate loyally with the other political branches and to respect the constitutional position of constitutional courts or media pluralism. Leaving aside the merits of each specific case, all those developments have been interpreted by critics as actual or potential violations of some basic principles concerning fundamental rights or the rule of law. If allegations were well-founded, however, they did not hint at individual violations of specific domestic or EU law provisions. Rather, they signalled the risk of a major departure from some broad constitutional principles within one or more Member States of the European Union. Due to its own constitutional ambitions – explicit or implicit – the EU cannot overlook those constitutional crises. On some occasions, it may even deal with them by relying on such far-reaching bulwarks of the supranational legal order as the fundamental freedoms. In most cases, however, the Treaties – which, by the way, recognise and protect national constitutional identities – do not confer on the Union any clear competences in areas which are seen as being reserved for national decision-making authorities. How then can EU institutions cope with a Member State supposed to be entering a slippery slope? Articles 2 and 7 TEU provide for a legal framework for those situations. The former entrenches some founding values of the Union, which are common to Member States as well: it mentions human dignity, freedom, democracy, equality the rule of law, and respect for human rights, including minority rights. The latter, in turn, lays down two procedures for addressing either “a clear risk of a serious breach” or “a serious and persistent breach” by a Member State of those values. Those procedures are mainly political in nature, as they are based on the dominant role of, respectively, the Council and the European Council. A subsequent involvement of the Court of Justice of the EU, however, is also possible. Both procedures have undergone massive criticism because of their perceived flaws, as have done both the inaction of EU institutions with regard to Hungary or Romania and their somehow awkward attitude towards Austria in 2000. To provide some interpretive clues for those crises, the seminar will make resort to the notion of constitutional homogeneity, which lay at the heart of a number of public law debates throughout the 20th century and has attracted considerable scholarly attention in the last twenty-five years or so. This can be explained as the effect of two concurring factors: an escalation in the constitutionalisation process since the Treaty of Maastricht was signed, and the increased heterogeneity of a dramatically enlarged Union. Constitutionalisation has been uneven, and enlargement has sometimes taken place too hastily. Therefore, issues of compatibility between the Union and the Member States – or among the several Member States – have sometimes arisen, as the refugee crisis and the aftermath of the latest Polish general election have recently shown. What does constitutional homogeneity mean in relation to the European Union? Does it fit in with the EU and its constitutional arrangements? If not, how should issues normally linked to constitutional homogeneity – among them, protection of fundamental rights and promotion of rule of law – be properly addressed within the Union? The balance between homogeneity and diversity in the European constitution can be addressed from two distinct perspectives, a more theoretical and a more empirical one. On the one side, the constitutions of most federal jurisdictions in the world contain so-called homogeneity clauses, designed to provide minimum standards throughout the constitutive entities of the federation as regards, basically, the institutional structure and, sometimes, fundamental rights. As James Madison put it, ‘The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the form of government under which the compact was entered into should be substantially maintained. … Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature’ . Constitutionally entrenched homogeneity clauses seem to be a recurring feature of federal constitutional arrangements: ‘It is a widespread feature of federal systems based on the principle of democracy that the member states are under a formal constitutional obligation to keep within a certain homogeneity concerning their own constitutional system’ . The European Treaties, inasmuch as they are the constitutional charter of a community based on the rule of law, are not an exception. The European Union is not a federal state but can be studied by making recourse to the dynamic concept of federalising process . For this reason, comparative lawyers started asking questions about the possibility of conceiving of a European “Guarantee Clause” as early as the 1980s . On the other side, some notion of European constitutional homogeneity first emerged in relation, first, to association agreements between the Communities and some Southern European States, and later to their admission to the Communities themselves. Internal constitutional homogeneity, in turn, has become a real concern since the early 1990s, in coincidence with the establishment of the Union and a dramatic leap in its constitutionalisation. Thus, the entrenchment of a homogeneity clause in the Treaties can be seen as offering sound evidence of how deep the process has gone thus far. Article 2 TEU (recently modified by the Lisbon Treaty) can be roughly compared with “traditional” federal homogeneity clauses: as already mentioned, it makes reference to human dignity, freedom, democracy, equality the rule of law, and respect for human rights . It also makes reference, in possibly ambiguous terms, to state structures and national societies (‘These values are common to the Member States in a society in which…’). Most federal constitutions also provide for enforcement mechanisms related to those clauses. Those mechanisms were originally conceived as political instruments to force the constituent units of a federation to respect some fundamental obligations stemming from the federal constitution. Article 7 TEU also contains an enforcement mechanism for those situations when there is a serious breach by a Member State of the values referred to in Article 2 (or the clear risk thereof). The introduction of that provision was a very important specification in the direction of the attitude of federalist mimesis of the EU legal system. After the Lisbon Treaty came into force, the conditions for review by the Court of Justice of acts adopted pursuant to Article 7 are also laid down at Article 269 TFEU. This presentation would not be complete, however, if we did not take into account the role of, first, national constitutional homogeneity clauses and, second, the national identity clause at Art. 4(2) TEU. When it comes to these provisions, the federal analogy has to be integrated. Federal constitutions usually contain a mere, more concise guarantee of the status of sovereignty (or autonomy) of the constituent units of the polity. Besides this, diversity is generally regarded as a fundamental element of the European Constitution (see e.g. Art. 167(1) TFEU). Thus, the homogeneity clause at Article 2 TEU should be probably given a “bidirectional” interpretation in order to be fully understood. All these elements point to the fact that the relationship between constitutional homogeneity and diversity within the EU is much more complex than it is the case in a “normal” federal system. The picture which has been sketched out, however, is hardly exempt from criticism. The debate about homogeneity has been an important part of European 20th-century constitutional thought, not only in Germany. More recently, however, this notion has been criticised in light of the pluralist and individualistic foundations of contemporary constitutional orders . Other authors, in turn, have adapted the notion to the idea of multilevel legal systems . There is also some common ground with the notion, proper to political philosophy, of militant democracy . Furthermore, the homogeneity clause and its (mainly political) enforcement mechanism have been criticised because of their alleged inability to ensure effective protection of fundamental rights within Member States. The “reverse Solange” hypothesis has been just worked out in order to react to this perceived weakness of Arts. 2 and 7 TEU . Another open problem is the legitimacy of interventions of the EU in areas which mainly lie beyond the scope of its own competences. Are the logic preconditions of these hypotheses correct? Have homogeneity clauses anything to do with the protection of fundamental rights? In fact, comparative constitutional analysis seems to lead to a different conclusion. Homogeneity clauses may be somehow effective when it comes to providing for a minimum standard of homogeneity of constitutional structures (e.g. separation of powers, or, more urgently in the case of some Member States, rule of law issues). This is far from being irrelevant for the protection of constitutional rights – but homogenisation of fundamental-rights standards per se has been ensured by other constitutional tools, both in the United States and Germany. This would be my main work hypothesis. An analysis of the case laws of their respective constitutional courts and the Court of Justice of the EU seems to confirm that basically the primary mission of homogeneity is not – if not indirectly – protecting fundamental rights. It is more closely related with the political, “structural” side of constitutional orders, as the peculiar nature of enforcement mechanisms somehow shows. This hypothesis seems to be confirmed by some recent moves of the European Commission. In the last few months, EU institutions have mainly focused on actual or potential violations of the rule of law at the national level. In March 2014, the Commission has presented its own rule of law framework, which aims at complementing the Article 7 procedure. In its meeting of 16 December 2014, the General Affairs Council has laid down the conditions for a “political dialogue” with Member States on the respect for the rule of law.
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Delledonne, G. (2016). Homogeneity and Constitutional Diversity in the EU : Protecting Fundamental Rights and the Rule of Law. Homogeneity and Constitutional Diversity in the EU : Protecting Fundamental Rights and the Rule of Law, National University of Ireland Mayooth. https://hdl.handle.net/2078.5/181650