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Comparative Aspects on Constitutions: Theory and Practice. Abstract Paper of Alfred E. Kellermann


Venue: Institute of Advanced Legal Studies in London – Conference

Tuesday 29 June -Thursday 1 July 2010.

Abstract Paper of Alfred E. Kellermann*

In the first part we have especially focused on the impact of the European Union (and the Copenhagen criteria) on the formulation and legal effects of texts of the national constitutions of the EU member States as well as the (potential) EU candidate and acceding countries.

In the second part we dealt especially with the situation in the Netherlands (“new monism”) and the legal effect of decisions of international organisations (UN, EU) within the Dutch legal order.

The impact of the EU legal order on the constitutions of the EU Member States and potential (candidate) countries

At the national level EU enlargement will contribute in many candidate countries most likely to the constitutional modernization of the country. The EU accession will give impetus to fundamental changes in this respect. Adaptation of the national constitutional provisions to comply with the acquis communautaire and EU requirements for Membership will be required.

Also after accession it will be necessary to adapt constitutional requirements as the acquis communautaire is a moving target and because there are constitutional problems with the ratification of treaties. As examples we analyzed the ratification of the Treaty of Nice by Ireland and the ratification by the Czech Republic and Germany of the Lisbon Treaty. We indicated the legal reasoning in the judgments of the Czech (3 November 2009) and German Constitutional courts (30 June 2009) on the compliance of their constitution with the Lisbon Treaty.

Multi-country cooperation in research is necessary for an efficient and effective preparation of the texts of national constitutions. We drafted in ANNEX I guidelines and questions for research on adaptation of national constitutions of EU Member States and (Pre) Candidate countries as a tool of management for a possible multi-country research project. Such a project can improve the quality of European and national constitutional law and can guarantee as an outcome identical legal effects of the constitutions in the national legal orders. In ANNEX II we drafted guidelines and instructions for drafting national constitutions.

Impact of the International and EU legal order on the Netherlands Constitution and its practice

The Dutch Constitution (Artt. 90 – 94) holds that legislative, executive, and judicial powers can be conferred on international institutions by treaty and the provisions of law of supranational sources to have direct effect providing they are binding on persons by virtue of their contents. No further action of the national authority was required.

Dutch regulations will further be inapplicable if they are not complying with the provisions of the treaties. Interesting is to remark that amending the Netherlands constitution is more complicated than introducing a treaty which is in conflict with the constitution.

The Dutch constitution denies further the judicial power to review the constitutionality of the acts of Parliament or treaties. On the other hand, the acts of Parliament and the constitution itself may be reviewed on their compatibility with international law.

Although the volume of European legislation in the Netherlands is estimated approximately 70% of the total legislation, in the Dutch constitution no reference at all is made to the EU or EC.

On request of the Dutch Government a number of policy options for amendment of the 1983 constitution have been developed. These options take into account the possibility, to limit, legally, the effect of a norm or international law within the domestic legal order if it severely conflicts with constitutional principles. This corresponds to the state of development of international law and the sometimes debatable legitimacy of international legal acts, according to the theory of “new-monism”. Monism and dualism should cease to exist as the exclusive theories.

The Dutch government made an evaluation on the assessment of the Dutch constitution from a legal, social and political viewpoint. The results of this evaluation show that these functions of the constitution are weak and become weaker because of the following three reasons..

  1. International Human Rights protection gets more attention than Dutch legal protection.

  2. Review of Dutch laws against the constitution is unconstitutional in the Netherlands.

  3. The text of the constitution is not familiar and not well-known.

* Dr Alfred E. Kellermann, Senior Legal and Policy Advisor, Visiting Professor in the Law of the EU, T.M.C. Asser Institute, The Hague

May 31, 2010

№6(45), 2010

№6(45), 2010