22-23 November 1996 CDL-STD(1996)018 Or
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Montpellier (France) 22-23 November 1996 CDL-STD(1996)018 Or. Engl. Science and technique of democracy, No. 18 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) The Constitutional Heritage of Europe Montpellier, 22-23 November 1996 TABLE OF CONTENTS Opening session ......................................................................................................................... 2 Introductory statement on the constitutional heritage of Europe by Mr Antonio LA PERGOLA..................................................................................Error! Bookmark not defined. First working session ................................................................................................................. 7 General interest of the concept of a European constitutional heritage ...................................... 7 a. The concept of European constitutional heritage - Report by Mr Dominique ROUSSEAU ............................................................................................................................... 7 b. European constitutional heritage and the history of Europe - Report by Mr Gérard SOULIER ................................................................................................................................. 21 c. Europe's constitutional heritage and social differences by Ms Hanna SUCHOCKA ............. 36 d. The end of the millennium: the triumph of constitutionalism in Europe by Mr Florin Bucur VASILESCU.................................................................................................................. 42 Second working session ........................................................................................................... 60 Conditions for a common institutional heritage....................................................................... 60 a. Identifying a common parliamentary heritage by Mr Constantin KORTMANN .................. 60 b. The conditions for a common state heritage - the multinational state and Europe by Mr Stéphane PIERRÉ-CAPS .................................................................................................... 68 c. Ukraine’s constitutionalism in the context of the constitutional heritage of Europe by Mr Serhiy HOLOVATY ........................................................................................................... 85 Third working session .............................................................................................................. 92 Conditions for a common heritage of fundamental rights ....................................................... 92 a. Common fundamental rights in the case-law of the court of justice of the European communities by Mr Jean-Claude GAUTRON........................................................................... 92 b. Who is the holder of fundamental rights - the individual and/or groups? by Mr Rainer HOFMANN............................................................................................................................ 114 c. On the function of fundamental rights by Mr Gregorio PECES-BARBA ........................... 132 Closing session....................................................................................................................... 141 The Constitutional heritage of Europe by Mr Jean-Claude SCHOLSEM ................................ 141 List of participants ................................................................................................................. 146 Opening session Introductory statement on the constitutional heritage of Europe by Mr Antonio LA PERGOLA President of the European Commission for Democracy through Law 1. The Venice Commission is moved by the hospitality offered by this old and famous centre of learning. It is an ideal setting for our seminar. We meet in a city where you can hear the heartbeats of a time-honoured European cultural tradition, and the constitutional heritage with which we are concerned is part and parcel of this world of culture. Since the Middle Ages, Montpellier has, like universities of similar lineage in other countries, shaped culture at home and across national boundaries. That is the double aspect of the way Europe has grown. Today, there is, as always, cross-fertilisation at work between the values or achievements we ascribe to Europe as a whole and those which differentiate and sometimes even divide our countries. Let me take this point further by way of introduction to our seminar. Our constitutional heritage ought to be seen against the background of this European oneness that does not stifle but, in a sense, fosters national differences, for it is actually interwoven with the threads of our domestic constitutionalism. The distinguished rapporteurs will no doubt till the land that here lies fallow. I will for my part only cast a glance at the ground to cover. Two questions come to mind. How do we take stock of such values as we share, and how do we put them to fruition? Ours is not a passive legacy. Economists would say that inherited wealth is a capital worth investing in new ventures. Here is a sound notion with which lawyers and political scientists can agree. Our legacy from the past is the foundation on which the Europe of the future can arise and is in fact being built. 2. First of all, then, we need the skills of in-depth legal comparison to discern what our constitutional heritage is and what it means today. We must bring this notion into conceptual focus through the lens of our absorbing interest in the Europe ahead of us. Now, there is more than one possible view of our constitutional heritage. We can describe it in terms of broad principles, such as political pluralism, the rule of law, the defence and promotion of human rights. This is a common stock of values and a heritage. We have seen it revive where it had been lost in the dark spells of totalitarianism. After the breakdown of the ideological walls, it is shared by old and new democracies alike, and the Council of Europe is its depository. We can hardly maintain, however, that thus defined our constitutional heritage is the exclusive preserve of European soil. It belongs in more ways than one to Western civilisation at large. Not by chance, the political tradition rooted in the West runs throughout the critical trials of history as the powerful and cohesive force that has brought Europe - the Europe proud to be the homeland of freedom, I mean - on the same ideological side with the nations that were its filiation across the Atlantic Ocean. Now, political pluralism, the rule of law and human rights are no more than basic principles, and they had to be developed in the constitutional systems of European countries. The constitutional heritage has thus been embodied in the constitutional law laid down to articulate the political order of each nation state. What we need, then, is a closer comparative view of the field we are scanning. There are differences as well as analogies in the "mise en oeuvre" of the heritage we find in the common background of our constitutions. The angle of vision must therefore shift to the recurring features of basic texts now in force which bear the stamp of a distinctively European outlook on the issues at stake in constitution making. It is a challenging inquiry. What trends of present day constitutionalism have reached the stage where you can regard them as an all round European development of the basic principles, the hard core of which is our common legacy? There is a good deal of variety even within the mainstream of generally accepted solutions. Nonetheless, certain data at our disposal stand out as clearly indicative of the constitutional tradition that prevails in Europe. One is parliamentary government, where the Prime Minister and the Cabinet are responsible to the elective House of Deputies. Another is the institution of the Constitutional Court, which had been established in several countries of Western Europe and has been catching on in a good many of the newer democracies. Both of these data point at the difference between the European and the American versions of constitutional democracy. Yet another common feature worth mentioning is the generalised acceptance by all countries concerned of the fundamental principle according to which the treaty establishing the Union and the law of the Union must be applied directly even in the face of incompatible internal legislation. A striking parallel development is the rank acquired by the Convention on Human Rights and the related system of guarantees with Strasbourg as its seat. 3. Of course, the topic of this seminar covers a much larger field than the above indicated areas of interest. What matters most, however, is not how many principles of constitutional theory or givens of experience we can assemble, but how we set them in a European perspective to explain that they draw their proper significance from one and the same inspiring source of tradition. Our constitutional heritage is, as I have said at the beginning, necessarily affected by the unity always intertwined with diversity in the flux of vicissitudes that have made Europe the great fold where our nations and peoples live together. Commonly held views on the Hauptprobleme of constitutional law have given rise to varying choices when they have been put in place in national systems, and these differences have in turn elicited a renewed interest in the original model - in its substance and inner logic, as it were - from which this or that