Constitutional amendments’ theory and troubles at supranational level: Constitutional change in the EU from the perspective of Richard Albert’s analysis

Richard Albert’s book offers a crucial systematization of constitutional amendments, their forms, procedures and scope. In doing so, it provides important insights on the theory and the practice of constitutional amendment design, the difficulty they face and the varieties of unamendability, amongst other things. This contribution seeks to apply Richard Albert’s analysis to the case of the European Union, where the existence of a fully-fledged Constitution has long been contested. It claims that this analytical framework can help to better understand the functioning of EU “constitutional amendments”, i.e. Treaty revisions, and their limits, in a context where they have remained substantially understudied

Competing Concepts of Subsidiarity in the Early Warning Mechanism

The essay aims at analysing how the relationship between parliaments in the European Union (EU) – the European, the national and the regional parliaments – are shaped after the coming into force of the Treaty of Lisbon and how the early warning mechanism can contribute to promoting their participation in the EU decision-making. Indeed, the control of compliance of draft legislative acts with the principle of subsidiarity appears as a key-element for enhancing the parliamentary involvement in EU affairs, as it is the opportunity to develop new institutional mechanisms, like the 'political dialogue', in spite of the political nature and function of this control. This essay is based on Neil MacCormick’s theory on the subsidiarity principle and, in particular, on the assumptions that what is called 'democratic deficit' in the EU is in reality a 'subsidiarity deficit'. Here it is argued that the 'subsidiarity deficit' can be contrasted by the early warning mechanism introduced by the Treaty of Lisbon and by the cooperation among the Parliaments of the EU.The essay aims at analysing how the relationship between parliaments in the European Union (EU) – the European, the national and the regional parliaments – are shaped after the coming into force of the Treaty of Lisbon and how the early warning mechanism can contribute to promoting their participation in the EU decision-making. Indeed, the control of compliance of draft legislative acts with the principle of subsidiarity appears as a key-element for enhancing the parliamentary involvement in EU affairs, as it is the opportunity to develop new institutional mechanisms, like the 'political dialogue', in spite of the political nature and function of this control. This essay is based on Neil MacCormick’s theory on the subsidiarity principle and, in particular, on the assumptions that what is called 'democratic deficit' in the EU is in reality a 'subsidiarity deficit'. Here it is argued that the 'subsidiarity deficit' can be contrasted by the early warning mechanism introduced by the Treaty of Lisbon and by the cooperation among the Parliaments of the EU.Refereed Working Papers / of international relevanc

Do Independent Fiscal Institutions Enhance Parliamentary Accountability in the Eurozone?

Independent fiscal institutions (IFIs) have been established or reformed in all eurozone countries following the reform of economic governance. As they are expected to counter the deficit bias of the governments and the information asymmetry of the legislatures and the public over the management of the budget, IFIs may support or even strengthen parliamentary accountability. This hypothesis is tested with regard to three IFIs, the Irish Fiscal Advisory Council, the Italian Parliamentary Budget Office, and the Spanish Independent Authority for Fiscal Responsibility. Although the economic context in which the IFIs were created was similar in the three eurozone countries, as was their mandate, these institutions have a rather different institutional positioning, being within the Parliament, in Italy; within the Executive, in Spain; and a stand-alone body in Ireland. This is likely to influence the IFIs\u2019 contribution to parliamentary accountability, we hypothesize that the closer the position of an IFI and its contacts to the parliament, the stronger is the scrutiny of the executive on budgetary policies. The analysis of parliamentary questions, hearings, and of the activation of the \u2018comply or explain\u2019 procedures shows that, overall, the IFIs\u2019 potential role to enhance parliamentary accountability has remained underexploited by the three legislatures, with no significant differences as for the institutional positioning of the IFI

Taking budgetary powers away from national parliaments? : on parliamentary prerogatives in the Eurozone crisis

This paper analyses if and how the position of national parliaments has changed after the adoption of Euro-crisis measures and their first enforcement and tries to draw some conclusions on whether these changes are just temporary or, rather, are likely to endure in the long term and hence to represent a permanent transformation of national constitutional systems. The paper challenges the mainstream assumption that the powers of national parliaments in budgetary procedures have been annulled. It is argued that once the ratification/application and implementation of the most contested Euro-crisis provisions – Fiscal Compact, European Stability Mechanism Treaty and rescue packages – have taken place, in reaction to the most acute phase of the crisis, the combination of national and EU rules, for example on the European Semester are likely to preserve the budgetary powers of national parliaments compared to the pre-crisis period. Parliamentary passivity does not derive, or at least not primarily, from the Euro-crisis legal measures; rather from the political context that the Euro-crisis has triggered. Thus any analysis of the role of parliaments in the Eurozone crisis has to take into account parliamentary institutions ‘in context’, which are influenced by the peculiar political and economic situation of each country. Far from being a uniform category, national parliaments in the Eurozone crisis show asymmetries and a significant variety of positions and powers, since their role depends primarily on national constitutional arrangements

The “due process” of constitutional revision: which guidance from Europe?

This paper deals with the influence exerted by the Council of Europe, notably by the Venice Commission, and by the European Union on constitutional amendments with a special focus on Italy, a founding member state of both organisations. It proceeds as follows: it first provides a quick introduction into the vexata questio of the difficult balance between rigidity and flexibility of democratic Constitutions, well-illustrated by the academic debate and by the Venice Commission’s Report on constitutional amendments of 2010 (CDL-AD(2010)001). Second, the paper considers which European standards have been set, especially by the Venice Commission, to design an effective and legitimate constitutional amendment procedure, and whether the Italian constitutional provisions and practice have abide to them. Third, the contribution reflects on the influence exerted by the Italian participation in the Council of Europe and in the European Union on the substance of the amendments adopted to the Italian Constitution. It is argued that at least since the mid-Twentieth century constitutional amendments procedures can no longer be treated as purely national phenomena. They are more and more guided by standards set at supranational level, notably by the Venice Commission, as derived by the European common constitutional heritage. The influence is exerted both on a procedural level, defining what can be called as the “due process” of constitutional revision, and on a more substantive level.This paper deals with the influence exerted by the Council of Europe, notably by the Venice Commission, and by the European Union on constitutional amendments with a special focus on Italy, a founding member state of both organisations. It proceeds as follows: it first provides a quick introduction into the vexata questio of the difficult balance between rigidity and flexibility of democratic Constitutions, well-illustrated by the academic debate and by the Venice Commission’s Report on constitutional amendments of 2010 (CDL-AD(2010)001). Second, the paper considers which European standards have been set, especially by the Venice Commission, to design an effective and legitimate constitutional amendment procedure, and whether the Italian constitutional provisions and practice have abide to them. Third, the contribution reflects on the influence exerted by the Italian participation in the Council of Europe and in the European Union on the substance of the amendments adopted to the Italian Constitution. It is argued that at least since the mid-Twentieth century constitutional amendments procedures can no longer be treated as purely national phenomena. They are more and more guided by standards set at supranational level, notably by the Venice Commission, as derived by the European common constitutional heritage. The influence is exerted both on a procedural level, defining what can be called as the “due process” of constitutional revision, and on a more substantive level.Niniejszy artykuł dotyczy wpływu wywieranego przez Radę Europy, zwłaszcza przez Komisję Wenecką, oraz Unię Europejską na procedury zmiany konstytucji, ze szczególnym uwzględnieniem Włoch, państwa założycielskiego obu organizacji. We wstępie omówiono problematykę trudnej równowagi między sztywnością a elastycznością demokratycznych konstytucji, dobrze zilustrowaną przez debatę akademicką oraz Raport Komisji Weneckiej w sprawie poprawek konstytucyjnych z 2010 r. (CDL-AD(2010)001). W artykule rozważono także, jakie standardy europejskie zostały ustanowione, zwłaszcza przez Komisję Wenecką, w celu zaprojektowania skutecznej i zgodnej z prawem procedury zmiany konstytucji oraz czy włoskie przepisy konstytucyjne i praktyka dostosowały się do nich. Ponadto rozważono wpływ uczestnictwa Włoch w Radzie Europy i Unii Europejskiej na treść poprawek przyjętych do włoskiej konstytucji. Argumentuje się, że co najmniej od połowy XX w. procedury poprawek konstytucyjnych nie mogą być już traktowane jako zjawiska czysto narodowe. W coraz większym stopniu kierują się one standardami ustalonymi na poziomie ponadnarodowym, zwłaszcza przez Komisję Wenecką, wynikającymi z europejskiego wspólnego dziedzictwa konstytucyjnego. Wpływ ten wywierany jest zarówno na płaszczyźnie proceduralnej, określającej to, co można nazwać „należytym procesem” rewizji konstytucyjnej, jak i na płaszczyźnie bardziej merytorycznej

Differentiated Fiscal Surveillance and the Democratic Promise of Independent Fiscal Institutions in the Economic and Monetary Union

2sìopenThe post-crisis reforms of the Economic and Monetary Union (EMU) have met with skepticism toward their democratic credentials. This certainly applies to the requirement to set up Independent Fiscal Institutions (IFIs). Drawing on Pettit’s model of republican legitimacy, this paper argues however that IFIs can indirectly increase the democratic character of national fiscal policy while preserving Member States’ autonomy. Such a democratic contribution is further facilitated by nationally differentiated implementation of the EU rules regarding the heterogeneous design and powers of IFIs. Based on a comparative analysis of selected Member States’ “elaboration discretion” in defining the organisation and the mandate of IFIs, the article highlights that these features reflect the variety of constitutional settings at domestic level. It is concluded that this heterogeneity amounts to a form of differentiated integration which allows for a better navigation of the trade-off between the persistence of fiscal policy externalities and the reduction in national autonomy.openFasone, Cristina; Merlo, StefanoFasone, Cristina; Merlo, Stefan