EU Law and National Constitutions

Alberto Nicòtina is PhD Candidate in Constitutional Law at the University of Antwerp and Member of the Government and Law Research Group. In 2022, he was Visiting Researcher at the Complutense University of Madrid and at the University of Copenhagen.Patricia Popelier is Full Professor of Constitutional Law at the University of Antwerp. She is Director of the Government & Law Research Group at the University of Antwerp and Senior Research Fellow of the University of Kent, Center for Federal Studies.Peter Bursens is Full Professor of Political Science at the University of Antwerp. His research agenda focuses on European decision-making, Europeanisation, federalism, and the democratic legitimacy of multi-level political systems.

• List of contributors xiiIntroduction: Constitutional dynamics of multi-level governance: indicators and hypotheses 1ALBERTO NICOTINA, PATRICIA POPELIER AND PETER BURSENSI.1 The questionnaire: aims and structure 4I.1.1 Ratification of EU treaties 6I.1.2 Judicial review of legislation 7I.1.3 Parliamentary scrutiny in EU affairs 8I.1.4 The role of subnational entities 9I.2 Explaining the constitutional dynamics of multi-level governance: preliminary hypotheses 91 Belgium: A constitutional strategy in support of European integration – with some potential pitfalls 11PATRICIA POPELIER AND PETER BURSENS1.1 Treaty ratification 111.1.1 The ratification procedure 121.1.2 The political parties’ position 171.2 Judicial review of legislation 191.2.1 The establishment of a system of constitutional review 191.2.2 The Constitutional Court: Europe-friendly 201.2.3 The Constitutional Court: Hesitant signs of resistance 211.3 Parliamentary scrutiny in EU affairs 251.4 The role of subnational entities 271.5 Conclusion 302 France: From progressive acceptance to recent tension 33DOMINIQUE RITLENG2.1 European treaty ratification and the French Constitution 332.1.1 The ratification procedure 332.1.2 Substantive requirements 352.1.3 The political debate about EU membership 402.2 Primacy of EU law, supremacy of the Constitution, and judicial review of EU law 432.2.1 From the acceptance of the primacy of EU law… 432.2.2 … to the guarantee of the supremacy of the French constitution 462.3 Parliamentary scrutiny 502.3.1 The scrutiny over the action of the executive in EU affairs 502.3.2 The control of compliance with the principle of subsidiarity 512.4 The role of subnational entities 532.5 Conclusion 533 Germany: Basic Law and European integration – open but defensive statehood despite a constitutional obligation to EU integration 54WOLFGANG WEIß3.1 Introduction 543.2 Treaty ratification 553.2.1 Starting Point: The Basic Law’s open statehood 553.2.2 The Europe clause: The specific EU integration provision of Article 23 BL, its expansion by complementary legislation, and the role of legal academia 593.3 Judicial review of legislation: The German Federal Constitutional Court and EU integration 653.3.1 The role of the FCC in judicial review of EU integration 653.3.2 Centralised constitutional review and EU law 723.4 Parliamentary scrutiny in EU affairs 723.5 The role of subnational entities 753.6 Conclusion 844 Italy: The long-term consequences of an “efficiency” constitutional strategy in the face of multi-level governance 86ALBERTO NICOTINA4.1 Treaty ratification 864.1.1 The post-war scenario and the “authorisation model” 864.1.2 The role of political parties from First to Second Republic 894.2 Judicial review of legislation 944.2.1 The establishment of the Italian Constitutional Court 944.2.2 EU law and the Italian legal order: The evolution of a traditionally dualist country 954.2.3 Open but defensive: the evolution of the “counter-limits” doctrine 974.3 Parliamentary scrutiny in EU affairs 1004.3.1 “Ascending phase”: parliamentary participation in EU decision-making 1004.3.2 “Descending phase”: the implementation of EU law 1044.4 The role of subnational entities 1044.5 Conclusion 1075 Luxembourg: An EU-supportive constitutional system (still) in evolution 109BIANCA NALBANDIAN5.1 Introduction 1095.2 Treaty ratification 1115.2.1 Current treaty ratification procedure 1125.2.2 Treaty ratification procedure evolution 1155.2.3 Latest constitutional reviews: The Parliamentary dossier no. 6030 and the 2019 reform 1195.2.4 Political debate 1215.3 Judicial review of legislation 1235.4 Parliamentary scrutiny in EU affairs 1255.5 The role of subnational entities 1275.6 Conclusion 1296 The Netherlands: A political commitment to Europe in a pragmatic constitutional culture 130MONICA CLAES AND MAARTEN STREMLER6.1 Introduction 1306.2 Treaty ratification 1316.2.1 The ratification of the EU treaties 1316.2.2 The position of political parties 1356.3 Judicial review of legislation 1386.3.1 Constitutional review in the Netherlands: no role for the courts 1386.3.2 The primacy of EU law in the Netherlands 1406.4 Parliamentary scrutiny 1426.4.1 Parliamentary control of the executive in EUaffairs 1426.4.2 EU affairs in the national political debate 1446.5 Conclusions 1467 The United Kingdom: The constitutional consequences of ambivalence towards European integration 148BRICE DICKSON7.1 Treaty ratification 1487.1.1 Debates about joining the EEC 1487.1.2 The European treaties and the UK’s constitution 1497.1.3 Post-accession Euroscepticism 1517.1.4 Margaret Thatcher’s premiership 1537.1.5 Increasing Conservative and Labour Euroscepticism 1547.1.6 Conservative governments since 2010 1557.1.7 Anti-EU political parties 1567.1.8 The Brexit referendum and the first Miller case 1577.1.9 The Brexit deal and the second Miller case 1597.2 Judicial review of legislation 1627.3 Parliamentary scrutiny of EU affairs 1657.4 The role of sub-national entities 1677.5 Conclusion 1718 Denmark: Revisiting the opt-outs in Denmark: a renewed focus on EU integration 172SUNE KLINGE8.1 Treaty ratification 1728.1.1 Constitutional framework of ratification of EUTreaties 1738.1.2 The political and historical background to the opt-out of the EU membership 1758.2 Judicial review of (EU) legislation 1788.2.1 The doctrine of supremacy of EU law over national law under Danish law 1788.3 Parliamentary scrutiny 1818.3.1 The parliamentary control over the executive in EU affairs 1818.3.2 EU affairs in the national political debate 1838.4 The role of subnational entities 1858.4.1 Autonomous territories and the relationship to Denmark and the EU 1858.4.2 Decentralised geographic organisation 1878.5 Conclusion 1879 Portugal: A European Union-friendly jurisdiction 190CATARINA SANTOS BOTELHO AND MARTA VICENTE9.1 Treaty ratification 1909.1.1 Portugal’s accession to the European Union 1909.1.2 The EU and constitutional amendments 1919.1.3 Leaving the EU 1949.2 Ratification and the role of referenda 1959.2.1 Constitutional procedure for the ratification of international treaties under the 1976 Constitution 1959.2.2 Referenda under the original version of the 1976Constitution 1969.2.3 Constitutional evolution: paving the way for EU referenda 1969.2.4 The role of Portuguese political parties in EU referenda 1979.2.5 The role of the Constitutional Court in preventing EU referenda 1989.3 Judicial review of legislation 2009.3.1 Overview of the Portuguese constitutional review model 2009.3.2 Ex ante control of EU law (as well of constitutional amendments triggered by EU law) 2019.3.3 Ex post control of EU law and the principle of primacy 2029.4 Parliamentary scrutiny 2059.5 The role of subnational entities 2079.6 Conclusions 21110 Czech Republic: The tale of two and a half presidents: identifying the key discursive struggles that shaped Czech integration 212PETR AGHA10.1 Introduction 21210.2 Treaty ratification 21210.3 Parliamentary scrutiny in EU affairs 21610.4 Judicial review of legislation 22210.5 The role of subnational entities 22910.6 Conclusions 22911 Hungary: From a friend to a foe? 231ATTILA VINCZE11.1 Treaty ratification 23111.1.1 The constitutional system in a nutshell 23111.1.2 Treaty ratification 23211.1.3 Procedural requirements 23411.1.4 Substantial requirements 23511.1.5 The political debate on membership – from Europhile consensus to dirty membership 23711.2 Judicial review of legislation 24311.2.1 Constitutional review in general 24311.2.2 The doctrine of supremacy in the case law of the Constitutional Court 24511.3 Parliamentary scrutiny in EU affairs 25011.4 The role of subnational entities 25211.5 Conclusion 25212 Poland: From cautious EU-friendliness to illiberal Euroscepticism 254ALEKSANDRA KUSTRA-ROGATKA12.1 Treaty ratification 25412.1.1 Poland’s way to the EU 25412.1.2 The role of the political parties in shaping Poland’s European politics 25512.1.3 The tentative framing of the “integration clause” in the Polish Constitution of 1997 25912.1.4 The “European clause” in action. Legal and political reasons for the application (or non-application) of Article 90 of the Constitution. 26112.2 Judicial review of legislation 26312.2.1 The scope of the Polish Constitutional Tribunal’s competences with regard to EU law 26312.2.2 Judicial review of EU law before 2015 26512.2.3 Judicial review of EU law after 2015 26912.3 Parliamentary scrutiny in EU affairs 27212.4 The role of sub-national entities 27512.5 Conclusion 276Conclusions: Building the founding blocks of a new bottom-up constitutional theory of EU integration 279ALBERTO NICOTINA, PATRICIA POPELIER AND PETER BURSENSC.1 Introduction 279C.2 What role for national constitutional actors in EU integration? A comparative overview 279C.2.1 National parliaments 279C.2.2 Courts 282C.2.3 Subnational entities 285C.3 Testing the research hypotheses: Avenues for future research 286C.3.1 National constitutional cultures in the face of EU integration 286C.3.2 Political strategies vs constitutional strategies: Are Eurosceptic political parties able to determine a constitutional change? 288C.3.3 Subnational constitutional strategies: What role for EU regions? 289C.4 Concluding remarks 290Index 293