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National Constitutional Law and European Integration

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National Constitutional Law and European Integration DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFAIRES CONSTITUTIONAL AFFAIRS National Constitutional Law and European Integration STUDY Abstract Notwithstanding the impact of European policy-making on Member states legislation, many constitutions guarantee essential characteristics of their political system. This study extracts the conditions of the European dimension of national constitutional law with regard to the prospects of future Europeanization of eight EU Member states (Czech Republic, Germany, France, Italy, Austria, Poland, Finland and Sweden). This sample of countries comprises founding members, new Member states with a rather long or brief constitutional tradition, large and medium as well as centralist and federal Member states. PE 432.750 EN This document was requested by the European Parliament's Committee on Constitutional Affairs. AUTHORS Mr Stefan GRILLER (Executive Summary, SE, FI) Mr Stefan KEILER (CZ) Mr Thomas KRÖLL (IT, AT [jointly with Lienbacher], PL (jointly with Lienbacher]) Mr Georg LIENBACHER (AT [jointly with Kröll], PL (jointly with Kröll]) Mr Erich VRANES (DE, FR) RESPONSIBLE ADMINISTRATORS Mr Wilhelm LEHMANN Ms Cristina CASTAGNOLI Policy Department C – Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels E-Mail: [email protected] LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its newsletter please write to: [email protected] Manuscrit completed in March 2011. Brussels, © European Union, 2011 This document is available on the Internet at: http://www.europarl.europa.eu/studies DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. National Constitutional Law and European Integration CONTENTS CONTENTS 3 LIST OF ABBREVIATIONS AND ACRONYMS 7 EXECUTIVE SUMMARY 11 1. GENERAL REMARKS 11 2. CORE RESULTS OF THE COUNTRY REPORTS 12 2.1. Czech Republic 12 2.2. Germany 13 2.3. France 15 2.4. Italy 17 2.5. Austria 17 2.6. Poland 19 2.7. Finland 20 2.8. Sweden 21 3. COMPARING THE ESSENTIAL CONSTITUTIONAL CONDITIONS FOR EU MEMBERSHIP 21 3.1. Constitutional Core Values and Core Competences 21 3.2. Constitutional Conditions for the Further Transfer of Powers 24 3.3. Ultra-vires-acts 25 3.4. Dissemination of Constitutional Principles throughout the EU? 26 PART I: GENERAL REMARKS 28 REFERENCES 31 PART II: COUNTRY REPORTS 32 1. CZECH REPUBLIC 32 1.1. Constitutional Foundations of EU-Membership 32 1.2. Constitutional limits to EU-integration 34 1.2.1. General Provisions 34 1.2.2. Limits set by the the Constitutional Court of the Czech Republic (Ústavní Soud) 34 1.3. Resulting relationship between EU law and national law 44 REFERENCES 45 3 Policy Department C: Citizens' Rights and Constitutional Affairs 2. GERMANY 46 2.1. Constitutional Foundations of EU-Membership 46 2.1.1. Overview 46 2.1.2. The Individual Legal Provisions 47 2.2. Constitutional Limits to EU-Integration 53 2.2.1. Limits to the (Further) Transfer of Powers to the EU through Treaty Amendments 53 2.2.2. Scrutiny of Secondary Legislation, Especially Ultra-Vires Doctrine 66 2.3. Constitutional Rules on Implementing EU Law 77 2.4. The Resulting Relationship between EU Law and National Law 79 REFERENCES 82 3. FRANCE 87 3.1. Constitutional Foundations of EU-Membership 87 3.1.1. Introductory Remarks 87 3.1.2. The bloc de constitutionnalité 88 3.1.3. The Individual Legal Provisions 88 3.2. Constitutional Limits to EU-Integration 95 3.2.1. Limits to the (Further) Transfer of Powers to the EU through Treaty Amendments 95 3.2.2. Scrutiny of Secondary Legislation, Especially ultra-vires Doctrine 101 3.3. The Resulting Relationship between EU law and National Law 105 REFERENCES 108 4. ITALY 111 4.1. Constitutional Foundations of EU-Membership 111 4.1.1. Overview 111 4.1.2. Individual legal provisions 111 4.2. Constitutional limits to EU-integration 114 4.2.1. Limits to the (further) transfer of powers to the EU through Treaty amendments (“non transferable” constitutional identities?) 114 4.2.2. Scrutiny of secondary legislation, especially ultra-vires Doctrine 117 4.2.3. Background: EU law and national law and the jurisdiction of the Corte costituzionale after its judgement in the case Granital 119 4.3. Resulting relationship between EU law and national law 136 REFERENCES 138 5. AUSTRIA 141 5.1. Constitutional Foundations of EU-Membership 141 5.1.1. Overview 141 5.1.2. Individual Legal Provisions 142 4 National Constitutional Law and European Integration 5.2. Constitutional limits to EU-integration 150 5.2.1. Limits to the (further) transfer of powers to the EU through Treaty amendments (“non transferable” constitutional identities?) 150 5.2.2. Scrutiny of secondary legislation, especially ultra-vires-Doctrine 152 5.3. Constitutional rules on implementing EU law 155 5.4. Resulting relationship between EU law and national law 156 REFERENCES 161 6. POLAND 169 6.1. Constitutional Foundations of EU-Membership 169 6.1.1. Overview 169 6.1.2. Individual legal provisions 170 6.2. Constitutional limits to EU-integration 177 6.2.1. Limits to the (further) transfer of powers to the EU through Treaty amendments (“non transferable” constitutional identities?) 177 6.2.2. Scrutiny of secondary legislation, especially ultra-vires-Doctrine 179 6.3. Constitutional rules on implementing EU law 179 6.4. Resulting relationship between EU law and national law 180 6.4.1. On the recent Judgement of the Constitutional Court on the Lisbon Treaty 190 REFERENCES 191 7. FINLAND 196 7.1. Constitutional Foundations of EU-Membership 196 7.1.1. The Finnish Constitution 196 7.1.2. The “Specific” Basis for Membership 196 7.2. Constitutional Limits to EU-Integration 198 7.3. The Resulting Relationship between EU Law and National Law 202 REFERENCES 203 8. SWEDEN 204 8.1. Constitutional Foundations of EU-Membership 204 8.1.1. Overview 204 8.1.2. The Specific Basis for Membership 204 8.2. Constitutional Limits to EU-Integration 206 8.2.1. Limits to the (Further) Transfer of Powers to the EU through Treaty Amendments 206 8.2.2. Scrutiny of Secondary Legislation, Especially ultra-vires Doctrine 209 8.3. Examples 210 8.3.1. Access to Official Documents 210 5 Policy Department C: Citizens' Rights and Constitutional Affairs 8.3.2. Gender Equality 214 8.3.3. Right to Collective Action 215 8.4. The Resulting Relationship between EU Law and National Law 216 REFERENCES 218 9. COMPARING THE ESSENTIAL CONSTITUTIONAL CONDITIONS FOR EU MEMBERSHIP 220 9.1. Constitutional Core Values and Core Competences 220 9.2. Constitutional Conditions for the Further Transfer of Powers 222 9.3. Ultra-vires-acts 223 9.4. Dissemination of Constitutional Principles throughout the EU? 224 REFERENCES 226 6 National Constitutional Law and European Integration LIST OF ABBREVIATIONS AND ACRONYMS AB Anfragebeantwortung im Nationalrat (Answer to an inquiry in the Aus- trian Parliament) AJIL American Journal of International Law AnwBl Anwaltsblatt Art Article Artt Articoli (Articles, Italian) AVR Archiv des Völkerrechts BGBl Bundesgesetzblatt (Federal Gazette, Austria, Germany) BlgNR Beilage(n) zu den Stenographischen Protokollen des Nationalrates (Annex[es] to the Protocols of the Austrian Parliament) BVerfGE Entscheidungen des Bundesverfassungsgerichts (Decisions of the GCC) BVerfGK Kammerentscheidungen des Bundesverfassungsgerichts (Chamber Decisions of the GCC) BVG Bundesverfassungsgesetz (Law with Constitutional Status, Austria) B-VG Bundes-Verfassungsgesetz (Austrian Constitution) CBSS Council of the Baltic Sea States CDE Cahiers du Droit Europeén CE Comunità europea EC (Italian) CECA Comunità europea del carbone e dell’acciaio ECSC (Italian) CEE Central and Eastern Europe CEE Comunità economica europea EEC (Italian) cf Confer CFI Court of Justice of the European Union (01.01.1998-30.11.2009) CFSP Common Foreign and Security Policy ChFR Charter of Fundamental Rights of the EU cit citato cl Clause CMLR Common Market Law Review Coll Collection Cost Costituzione (Constitution, Italy) CZCC Czech Constitutional Court DVBl Deutsches Verwaltungsblatt DzU Dziennik Ustaw Rzeczypospolitej Polskiej (Official Journal of the Re- public of Poland) EAEC European Atomic Energy Community (Euratom) EC European Community/ies ECB European Central Bank 7 Policy Department C: Citizens' Rights and Constitutional Affairs ECHR European Convention of Human Rights ECJ European Court of Justice ECR European Court Reports ECSC European Coal and Steel Community Ed(s) Editor(s) EEA European Economic Area EEC European Economic Community eg exempli gratia EIoP European Integration online Papers EMU Economic and Monetary Union EN English ENEL Ente nazionale energia elettrica ERM Exchange rate mechanism esp Especially et al et alii EU European Union EuConst European Constitutional Law Review EuGRZ Europäische Grundrechte-Zeitung EuLJ European Law Journal EuR Europarecht (journal) Europol European Police Office EUZBBG Gesetz über die Zusammenarbeit von Bundesregierung und Deut- schem Bundestag in Angelegenheiten der Europäischen Union (Act Amending the Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union, Germany) EUZBLG Gesetz über die Zusammenarbeit
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