The Treaty of Lisbon: European „Philadelphia“? Comparison from the Juristic Point of View.


                                          Igor Blahušiak

Právnická fakulta Masarykovy univerzity, Brno, Katedra mezinárodního a evropského práva


                                          David Sehnálek



Keywords

Treaty of Lisbon, European Union, constitutionalism, European constitution, US constitution


Resumé

The Treaty of Lisbon has been adopted after a failure of the Treaty Establishing Constitution for
Europe (“the Constitution”), as a kind of its successor; it preserved the key elements of the
failed Constitution, while dropping constitutional terminology. However, as it will be argued in
this contribution, it has also a constitutional character.

A constitution in a broad sense is the law that establishes and regulates organs of government. The
notion of constitution can be perceived in three different ways, having regard to the “contents” of
the constitution: material, formal and ideal. In its material meaning, a constitution is formed by
all of the legal norms regulating power structures in the state, its organization, functioning and
relations to the individuals, while no attention is paid to the substantial form of the
constitution.  In the formal sense, a constitution is a document which regulates matters mentioned
above and has a special, more rigid form, combined with a higher legal force. A constitution in
this sense is a document different from “ordinary” laws. In ideal point of view, the attention is
paid to the substance of a constitution; to norms which should be entailed in such a document.

The constitutionalism, the term in one of its meanings describing the extent, to which a particular
legal system possesses the features of the notion of constitution, in the EC developed gradually
over time. The EC has developed from an international organization to a supranational entity that
confers rights and duties directly to its individual citizens and in which the controls on the
exercise of public power are similar in nature to those found in nation states. The existing
Treaties do meet the criteria enlisted above. The decision-making in the Council, by the qualified
majority, rather than unanimity, the existence of the European Parliament and the Court of Justice,
as well as institute of Union citizenship, principles of direct effect and primacy of communitarian
law are the most prominent features of line of thought leading to this conclusion.

Also, the interpretation of the Court of Justice (“ECJ”), according to the Article 234 Treaty
Establishing the European Community and corresponding relationship between national courts and the
ECJ has had a profound effect on constitutional development of the Communities and Union. There has
been a significant shift of the ECJ’s attitude to the constitutional character of the Treaties.  In
Van Gend en Loos, the Court spoke on a new legal order of international law for the benefit of
which the member states have limited their sovereign rights.  The question of relationship of new
established European law to the national law was not addressed at that time.

It was precisely this question that created momentum for the Court to change the view mentioned
above. In Costa v. ENEL, the Court held that in contrast with the international treaties, the EC
Treaty has created its own legal system, which had become an integral part of the legal system of
the Member States and which their courts are bound to apply. Thus, in the accord of Van Gend en
Loos reasoning, the Treaties have established a new legal order, that is different from
international law and consequently, the EEC Treaty forms automatically after ratification a part of
national law.

The last shift occurred in Les Verts. The Court has addressed the question of the role of founding
Treaties in this legal order. The Court stated that the Treaty is a basic constitutional charter
for the Communities. This view enabled it to hold that the Communities are based on a rule of law
and to establish a system of remedies that ensured legality to be observed. This line of reasoning
was further strengthened by establishing the principles of indirect effect in Von Colson and
governmental liability in Francovich. Constitutionalism in the European Union thus might seem to
some observers to be a sort of by-product. As I will argue later in this article, this is certainly
not the case.

However, although the EU possesses characteristics of constitutionalism, it does not possess a
constitutional document. This kind of document was almost accidentally produced as an outcome of
the deliberations of the Convention on Future of Europe, in the form of the Draft Treaty
Establishing the Constitution for Europe.

The constitutional experience of the USA and the EU has in common more than is usually accepted.
The Philadelphia convention, besides laying foundation of the republican federalist order of the
USA, founded a congressional, not a presidential system. This is very similar to the position of
the European Parliament in the present-day constitutional setting of the EU.  Also, the American
constitution regulated relations between the federal government and states, which is not dissimilar
to the separation of powers introduced, or perhaps better put, clarified, by the Treaty of Lisbon.
The American system favors smaller states, like the European constitutional settlement does.

If we look at the process of framing of the two constitutions, there are would be also some
similarities if we compared the Philadelphia convention to the Convention on the Future of Europe.
However, the process of constitutionalization in the EU has been rather a longer term evolution,
than a single act. Thus, from the procedural point of view, there are not many similarities and
procedurally, it can be said that experience of the USA and the EU is of a totally different
nature. Whereas the USA started with the written constitution and only gradually developed
constitutionalism, the EU experienced the process of constitutionalization first, without having a
formal written constitution  Nevertheless, it was judiciary in both cases, that promoted
suprastate, or supranational, legal order aimed at guaranteeing the development of the common
markets.

We can conclude that there are some significant similarities in the constitutional settlement of
both entities. Thus, the Treaty of Lisbon cannot be perceived as a unique event, a kind of European
Philadelphia, even if we consider it to be a direct successor of the Treaty establishing
Constitution for Europe; we’d better view it as a part of gradual constitutional development of the
European integration process. Nevertheless, the central role of the judiciary in the constitutional
process, as well as substantial similarities in the constitutions of both entities allow us to pose
a question whether there can be a possibility to learn some lessons from the evolution of the US
constitutional settlement in respect to the EU.

Contacts - email:

igor.blahusiak@gmail.com

blahusiak@law.muni.cz