Introduction: Multilevel Constitutionalism in Action

Ingolf Pernice*

“Ceci n’est pas une constitution...”.1 What do we expect of a treaty for which the
contracting parties – as the EU Member States did in the Brussels Mandate of 20072
– explicitly underline that it shall not have a constitutional character? Thus, the
Treaty of Lisbon is not, nor shall the Treaty on European Union and the Treaty on
the Functioning of the EU as they result from it, become a Constitution for Europe.
And indeed, the former primary law was not substituted by a complete set of rules
establishing institutions, procedures and basic conditions for the European suprana-
tional public authority, as the Treaty establishing a Constitution for Europe was
supposed to do. It was merely modified by being made more systematic, more trans-
parent and more effective. Does it not have a constitutional character?
A negative answer seems to result from a first look at the texts: The preambles of
the Treaty of Lisbon, and also of the amended Treaty on European Union (TEU)
start by listing – like the existing treaties – all the heads of state and government
representing their countries with the words: “His majesty, the King of the Belgians,
Her Majesty, the Queen of Denmark…”, and ending with: “…her Majesty the
Queen of the United Kingdom of Great Britain and Northern Ireland”, having desig-
nated their respective Plenipotentiaries who, as the preambles conclude, “having
exchanged their full powers, found in good and due form, have agreed as fol-
lows…”. What follows is the text of the treaties.
This is not how a Constitution traditionally looks like. But also for the contents
some peculiarities can be noted: Like the Treaty establishing a Constitution for the
European Union in its Article I-60, the amended EU-Treaty provides for the “volun-
tary withdrawal from the Union” of a Member State desiring to withdraw (Article
60). No constitution actually in force contains such a provision. And also the other
final clauses of the amended treaties are typical for international treaties and do not
seem to correspond to final clauses of a classical constitution.
What could lead the European Constitutional Law Network (ECLN) and its Bulgar-
ian hosts to exploring, nonetheless, at its Seventh International Conference (2008) in

* Professor, Humboldt-University of Berlin.

1 This title was kindly suggested by Mattias Wendel alluding to the painting of René Magritte,
see for more detail: Wendel/Belov/Angelov, The Constitutional Paradigm revisited. Looking
at the Lisbon Treaty with the eyes of Magritte, the concluding contribution to this volume.
2 IGC mandate, Brussels European Council of 21/22 March 2007, Presidency Conclusions
Annex I, http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/94932.pdf.

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 Introduction: Multilevel Constitutionalism in Action

Sofia, whether or not the new primary law of the European Union might be qualified
as “constitutional” and discussing some of its basic constitutional issues?
The ECLN has organised this Conference in the capital of one of the youngest
Member States with a view to appreciate the accession of Bulgaria, to encourage the
European-wide discourse on constitutionalism beyond the state3 and in particular to
exchange views and learn from each other what the character and impact of the
Treaty of Lisbon might be. With the outcome of its discussions, the present collec-
tion of contributions is striving to enhance the understanding of this treaty and to
facilitate national parliaments and the citizens of all the EU Member States to agree
upon it. So far, the conclusion of the Treaty of Lisbon seemed to be a major
achievement on a long way aiming at a meaningful reform of the EU; it is indeed the
result of more than ten years of debates and negotiation in and between the original
fifteen, now twenty-seven Member States. The aim was threefold:

௅ To make Europe fit for enlargement – the “left-overs” of Amsterdam had to be

settled – and in particular to give the European Union the instruments needed
for efficient action to meet the challenges of our post-national societies;
௅ To enhance democratic legitimacy of the European Union through strengthen-
ing the European Parliament, involving national parliaments, and giving the
citizens a right of popular initiative,
௅ To enhance transparency of the founding treaties of the European Union, make
it more understandable for the citizens and to clarify for what the Union is re-
sponsible and what shall remain a matter for the Member States.

Though not in the form of, and with the express terms of a constitution – the at-
tempt to bring into effect the Constitutional Treaty has failed due to the negative
referendums in France and the Netherlands – the Treaty of Lisbon well contains all
the necessary reforms, on the lines indicated, with the form of an ordinary treaty
amending the existing primary law: It is not a constitution and there is little remind-
ing us of how constitutions classically look like. It is not establishing a European
federal state or even a super-state, as some suggest and as the applicants in the case
against the German law of ratification brought to the German Federal Constitutional
Court claim4: Most – if not all – symbolism to this effect has been deleted and, what
is more important, nothing in the Treaty of Lisbon can be interpreted as changing
the limited and supranational nature of the European Union. The opposite is true:
With more powers given to the European Parliament and national parliaments, with

3 For a first conference held on this issue in October 25th, 2007 in Berlin, see: Pernice (ed.),
Der Vertrag von Lissabon: Reform der EU ohne Verfassung? Kolloquium zum 10. Geburt-
stag des WHI, 2008, for another conference held on April 11 and 12, 2008, see: Griller/Ziller
(eds.), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty?, 2008.
4 German Federal Constitutional Court, cases no. 2 BvR 1010/08 and 2 BvE 2/08 – Gauweiler,
pending.

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Pernice

more efficient decision-making procedures, with a more effective system of attribut-

ing, organising and limiting the European competences and their exercise in con-
formity with the principles of subsidiarity and proportionality under the “early warn-
ing system”, and with the legally binding character of the European Charter of Fun-
damental Rights, the European Union will better serve the consented common
interests of the citizens of the Union though policies which are out of reach for the
individual states or more effectively pursued at the European level as compared to
any isolated action at the national level.
It is an open question, to date, whether or not as a result of the negative referen-
dum in Ireland in June 2008 the Treaty of Lisbon will share the fate of the Constitu-
tional Treaty. Its entry into force will need the “yes” of the Irish people as it requires
ratification by all the Member States according to their respective constitutional
conditions. Thus, as it was necessary to find a new solution after the French and the
Dutch voters rejected the Constitutional Treaty, debates have started on what can be
done in order to find an agreement of Ireland as well as of the remaining Member
States who have not taken a decision yet. Giuliano Amato stresses in his “Humboldt-
Speech” of July, 10th, 2008 “that voting ‘no’ has been a self defeating reaction, for
the Treaty remedies some of the shortcomings due (also) to which it has been voted
against”.5 It is clear that the solution will have to meet the worries of the Irish peo-
ple, as it is also clear that the parliamentary ratifications of the other Member States
are by no means less democratic than a referendum. Whatever may be the procedure
at the national level, it seems to be useful for all who will be invited to take a posi-
tion as it is for those who will have to apply and respect it, to understand what the
Treaty of Lisbon is about and to evaluate its implications on the basis of sufficient
information.
To this end, a selected group of specialists for European and constitutional law,
including judges from Constitutional Courts of some Member States met at the New
Bulgarian University of Sofia in April 2008 to analyse the terms of the Lisbon
Treaty in its context, to see whether or not the amended EU Treaties have or have
not a constitutional character and what are its most important constitutional features.
On the first point it seems to be clear that in spite of the provisions in the Brussels
Mandate the constitutional character of the primary law of the European Union has
been maintained and even strengthened, though it is not a Constitution in the tradi-
tional sense used for a state.
The contributions to Part I of this book, titled “Typological and Methodological
Foundations”, presented by Tanchev, Griller, Guerra Martins, Curtin and Craig are
dedicated to elaborate – from their diverse perspectives – what the term “constitu-
tion” means and by which elements the Lisbon Treaty adds to what “constitutional-
ism without a constitution” might mean. It is a “material constitution without ambi-

5 Amato, Ratifying Lisbon and Restoring Citizen’s Trust, Humboldt-Speech of 10. 7. 2008, p.
5, see: http://whi-berlin.de/hre.

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 Introduction: Multilevel Constitutionalism in Action

tion to be a democratic or political big C constitution”, as Curtin puts it, alongside

which the “empirical constitution” continues to evolve as a consequence both of the
ECJ case-law and the interinstitutional arrangements and other institutional prac-
tices. Thus, Craig explains that the treaty which was elaborated on the terms of the
very detailed Brussels Mandate will not lead to a significant change of the methods
of Treaty interpretation, except for the Charter of Fundamental Rights which gives
claimants and their legal advisors more secure foundations for cases which they may
be encouraged to bring before the courts.
Part II of the present volume presents contributions on “Basic Fundaments of the
European Legal Order” under the Lisbon Treaty. In particular it deals with the prin-
ciple of primacy, which according to Drumeva, should be clearly distinguished from
what national constitutions mean when they claim to be the supreme law of the land.
Another basic item are the status and rights of the citizens of the Union which, ac-
cording to Shaw, are tending to have a more participatory meaning in a Union evolv-
ing towards a “protective polity”. For her, the democratic implications of the Euro-
pean citizenship are strengthened under diverse provisions, though the reference
made in Article I-1 of the Constitutional Treaty to the will of the citizens as a basis
for the Treaty, has been omitted in the Treaty of Lisbon. Talking about the “citizeni-
sation” of the Union under the Lisbon Treaty, she stresses the change made to Arti-
cle 17 EC on the citizenship of the Union being not “complementary” any more, but
in future “additional”, thus avoiding the assumption that it may detract from the
national citizenship. Dutheil de la Rochère recalls the origins of the Charter of Fun-
damental Rights to which the Lisbon Treaty will give legally binding force. It is
indeed one of the Union’s new “three pillars” whereupon the protection of these
rights will be based in future, and the express list of liberal and social rights will
serve not only to protect individuals from infringements to their individual free-
doms, but also as guiding principles and values for the policies implemented by the
European institutions. Good reasons are given for the view that the “opt-out” for
Britain and Poland is “without much consequences”.
Part III regards the “Institutional Changes and Challenges” covering, however, by
far not all the important changes introduced by the Treaty of Lisbon. But the princi-
ple of subsidiarity and, in particular, the role of the national parliaments discussed
by Louis and “from an outsider’s view” by Bermann certainly are of major impor-
tance. They did not only range among the central issues the Nice Declaration of
February 20016 but also can be regarded as two key elements preserving the balance
of powers within the composed European constitutional system. The principle of
subsidiarity reins the exercise of the powers conferred to the European institutions in
all policy areas where European action may be possible and regarded necessary but
the Member States remain competent to legislate as far as common policies are not

6 Declaration no. 23 on the future of Europe, attached to the Treaty of Nice of 26.2.2001, see:
http://www.europa.eu.int/eur-lex/lex/en/treaties/dat/12001C/pdf/12001C_EN.pdf.

15
Pernice

affected. And with the new rules on national parliaments they will become part of
the European institutional structure insofar as, in addition to the control of their own
governments acting at the Council, they are involved in the legislative procedure as
guardians of their own powers regarding European policies. Louis not only describes
the origin and main features of the “early warning system” but gives a very rich and
thorough analysis of the present and future position of national parliaments within
the European system, including their cooperation among each other and with the
European Parliament through COSAC as a forum which could also serve as a forum
for collective action under the “early warning system”. Though the national parlia-
ments constitute, as Bermann puts it, “truly plausible guardians of subsidiarity” –
indeed, they are the institutions at the national level, which would be affected mostly
in case of violations – and the mere existence of the procedure may indeed increase
their awareness and activity regarding European policies, both authors are sceptical
about their capacity to form and coordinate their position within the short time limit.
And Louis adds the question whether the ECJ will reconsider its self-restraint on
subsidiarity when national parliaments will use their new powers to bring cases for
violation of this principle.
Part IV of this volume deals with “Major Changes in Policy Fields”. One of the
most discussed issues of the reform regarding policies, indeed, is the balance be-
tween liberal and social principles. The new EU-Treaty does not only contain an
express reference to “highly competitive social market economy aiming at full em-
ployment and social progress” in Article 3 on the objectives of the Union, while the
reference to a “system ensuring that competition is not distorted” was dropped and
included into Protocol no. 27 in order to make clear that it is not a free, but a social
market economy on which the Union is based. A number of other provisions on
social policy and solidarity have been added consequently to the new primary law.7
Yet, it is a common understanding of many Member States that social security, em-
ployment policies, no less than economic policies, are basically a matter for the
Member States and that there is no reason to assume that their objectives could be
better served at European level. The opposite seems to be true for the Area of Free-
dom, Security and Justice. Given the multitude of European measures felt necessary
here, probably the most important achievement of the Treaty of Lisbon is the com-
munitarisation of the areas of judicial cooperation in criminal matters and police
cooperation. Zemánek highlights the deficiencies of the current provisions and
comments on the innovations with some enthusiasm. He rightly understands this
reform as the formal abolishment of the divide between the intergovernmental and
the supranational approach being so far characteristic for the Area of Freedom, Se-
curity and Justice, but also as ensuring more democratic legitimacy, transparency,
efficiency and legal certainty. But he also draws attention to the „price for communi-

7 See for more details: Kotzur, Die soziale Marktwirtschaft nach dem Reformvertrag, in: Perni-
ce, note 3 supra, p. 191-198.

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 Introduction: Multilevel Constitutionalism in Action

tarisation“, which he sees in the exceptions provided for the Member States’ respon-
sibility for the maintenance of law and order and the safeguard of international secu-
rity, as well as in the „institutional deviations“ still reminding the intergovernmental
method, namely the right of initiative for a quarter of the Member States, the limita-
tions on the scope of harmonising directives, the special legislative procedure appli-
cable in sensitive policy areas, the „emergency brake“-system, the opt-out clauses
and the new transition clause regarding measures taken in these areas under the
existing EU-provisions.
No less important are the new provisions on the external action of the European
Union under the Treaty of Lisbon. As we can learn from Kaddous, this treaty intro-
duces numerous simplifications and clarifications, though the areas of Common
Foreign and Security Policy (CFSP) and of the Common Security and Defence Pol-
icy (CSDP) are not communitarised. The CFSP will be subject to stricter rules of
coordination and cooperation. The new role of the President of the European Coun-
cil and the High Representative will improve the representation of the Union to-
wards third countries and the Lisbon Treaty provides for more solidarity between the
Member States. The new regime may be called “sui generis” but both pillars of
foreign action basically remain within the national competence and there is no judi-
cial review of the measures taken, except for restrictive measures and for the de-
fence of the supranational competences of the Union.8 Only the third pillar including
the foreign policy aspects of the internal policies and, more importantly, the com-
mon commercial and development policies is fully communitarised and, with the
extended participation or even the consent of the European Parliament, subject to a
more democratic regime. Kaddous draws the attention to the unique legal personal-
ity of the Union established by the Lisbon Treaty, to the new institutional arrange-
ments and, in particular, to the new and extended list of principles and objectives
which are common guidelines for the policies in all three pillars holding them all
together and asserting the identity of the Union. Through different means, thus, the
Treaty of Lisbon ensures that the EU will be seen from the outside as a single unit
and that its external policies are more coherent, more effective and, regarding trea-
ties concluded with third countries in areas of Community competences, more de-
mocratic.
Turning back to basic constitutional issues, Part V on “Ratification and Future
Amendments” deals with the new procedural provisions regarding the amendment of
the Treaties and the involvement of the European public. As successful the Conven-
tional method seemed to be, as critically it is seen by Benz in particular in the light
of the ratification experiences. While it is supposed to become the „ordinary” proce-

8 See Article 275 TFEU and Article 40 TEU*; for a recent case where the Court has annulled a
Common Action under Article 14 TEU because the measure could have been taken under the
provisions of the EC-Treaty see Case C-91/05 Commission and European Parliament/Council
– ECOWAS, not yet reported.

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Pernice

dure he finds that it will rather come out to be exceptional: „As long as ratification
follows national rules and requires unanimity, the transparent Convention method
implies high risk of failure“, and he sees the irony in the attempt to democratize
Europe leading to the return to intergovernmental bargaining „because national
democracy increases decision costs“. The political scientist, therefore, proposes a
way for ratification without unanimity which could even be applied already in the
case of the Irish „no“. The advantage of his proposal would be that it would not limit
but increase democratic responsibility of those who participate in the decision-
making, an issue which is very thoughtfully dealt with by Eijsbouts. His concern is
the better involvement and participation of the public in the processes of Treaty
amendment. The mere history of the Constitutional Treaty and the attempt of the
governments to remedy the deadlock by the Treaty of Lisbon, which itself was re-
jected meanwhile by the Irish people, is interpreted as having an important impact
on its spirit and its future understanding. At least the Convention method has proved
not to succeed „in involving the public“. What Eijsbouts suggests is not to follow
the path of national referendums but, in order to involve the peoples or public, just
to allow five years between a Treaties’ signature and the deadline for its ratification.
The elections at the national and European level would provide an opportunity for
the citizens on both levels to make the amendments an issue in the elections, if felt
necessary, to discuss and to vote upon them, as in the French case with Sarkozy,
together with the political parties who may support or oppose the ratification.
Thus, the procedure for the amendment of the European Treaties will remain a
major issue for the future of the Union. This includes the necessity of substantial
reforms before further enlargement is considered. Rodin reports on the internal diffi-
culties for Croatia as a new candidate Member State, to conform with the European
standards regarding not only the definition of public interest and its relationship to
fundamental rights and freedoms, but also the role of the judiciary vis-à-vis the leg-
islator. This contribution shows how deeply the changes required as a pre-condition
of membership to the EU concern national traditions. Actually, the work to be ac-
complished by the candidates wishful to accede does not seem to be less important
than the efforts required for the Union to prepare itself for any new enlargement:
bringing into force the reform considered to be conditional already for the accession
of the youngest twelve Member States while the “left-overs” of Amsterdam still
remain today.
The very ambitious subject and program of the Conference was implemented in a
highly concentrated and stimulating manner. This can also be concluded from the
general report given by Wendel, Belov and Angelov, the three young researchers
who, through their intellectual input and organisational talent during the preparation
and throughout the discussions not only made the Conference possible but also
demonstrate how effective genuinely “European” cooperation can be. Titled “The
Constitutional Paradigm revisited. Looking at the Lisbon Treaty with the eyes of
Magritte”, this report reflects the lively exchange of views as well as how the next

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 Introduction: Multilevel Constitutionalism in Action

generation feels about an important attempt to set a new basis for the future constitu-
tional development of the European Union – which will be part of their own future
too.
In some respect, thus, the European Union can be seen as a joint venture of its
citizens and its Member States, at least it is one of many possible ways in which
multilevel constitutionalism may find concrete expression and form. But it is also a
laboratory for the development of political systems beyond the State, able to meet
the challenges of the new century. Yet, analysing new steps as proposed with the
Treaty of Lisbon, discussing their constitutional and practical impact and developing
ideas for how such a system should evolve in the future, as reflected in the present
book, can be taken as a modest contribution to the process at stake: multilevel con-
stitutionalism in action.
This seventh ECLN-Conference took place under the patronage of the Prime Min-
ister of Bulgaria, and was honoured by the Bulgarian Minister for European Affairs,
Mrs. Gergana Hristova Grancharova who in her speech at the opening ceremony in
the Sofia “Palace of Culture” placed the integration of Europe and, in particular, its
constitutional development among the great priorities of her country. I would like to
express many great thanks to both of them for giving our work such encouraging
attention! Special thanks are due also to my dear friend and colleague Evgeni
Tanchev who, as a judge of the Constitutional Court of Bulgaria, was so kind as to
share with me the responsibility for this Conference as a joint venture in the debate
on multilevel constitutionalism, and to Sergej Ignatov, the Rector of the New Bul-
garian University, who kindly hosted the event offering us a friendly atmosphere in
an open-minded environment. I shall further express my deepest gratitude to the
Konrad Adenauer-Foundation and, in particular to the Director of its Rule of Law
Program South-East Europe, Ricarda Roos, who offered not only essential financial
resources but also proved as a most experienced and competent partner in designing
and setting up the Conference. We are deeply grateful, as well, to Mrs. Zinaida Zla-
tanova, Head of the Representation of the European Commission in Bulgaria, for
further financial support, which finally made our gathering in Sofia possible. Fi-
nally, I would like to thank all those who have contributed with their analyses and
reports, both orally and written, to the Conference including the present book, and in
particular Mattias Wendel, Martin Belov and Miroslav Angelov not only for the
abovementioned report, but above all for their great commitment and valuable help
to make this Conference a success. Ariane Grieser and Michael von Landenberg-
Roberg collected and prepared the contributions to this book for publication, an
often underestimated amount of work and care for which I would like to express my
deep gratitude.

Ingolf Pernice
Princeton/Berlin, September 8, 2008

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