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EU ENLARGEMENT AND THE

CONSTITUTIONS OF CENTRAL AND

EASTERN EUROPE

In the wake of the EU’s greatest enlargement, this book explores the

adaptation of the constitutions of Central and Eastern Europe for mem￾bership in the European Union. In response to the painful past, these new

constitutions were notably closed to the transfer of powers to international

organisations, and accorded a prominent status to sovereignty and inde￾pendence. A little more than a decade later, the process of amending these

provisions in view of the transfer of sovereign powers to a supranational

organisation has proved a sensitive and controversial exercise. This book

analyses the amendments against the background of comparative experi￾ence and theory of sovereignty, as well as the context of political sensi￾tivities, such as rising euroscepticism ahead of accession referendums. It

concludes with a broader inquiry into the role and rationale of the national

constitutions in the process of European integration. The book also con￾siders the implications of the European Constitution, in the framework of

the debate on European constitutionalism and post-national governance.

anneli albi is a lecturer in European Law at the University of Kent.

She obtained her Ph.D at the European University Institute in Florence,

where her research focused on the adaptation of Central and Eastern Euro￾pean constitutions for EU membership. In 2003–04, she was a General

Rapporteur of the Asser Institute and the Netherlands Foreign Ministry

MATRA multicountry project ‘The Impact of Accession on the National

Legal Orders of Candidate Countries’.

CAMBRIDGE STUDIES IN EUROPEAN LAW

AND POLICY

This series aims to produce original works which contain a critical analysis of the state

of the law in particular areas of European Law and set out different perspectives and

suggestions for its future development. It also aims to encourage a range of work on law,

legal institutions and legal phenomena in Europe, including ‘law in context’ approaches.

The titles in the series will be of interest to academics; policymakers; policy formers who

are interested in European legal, commercial, and political affairs; practising lawyers

including the judiciary; and advanced law students and researchers.

Joint Editors

Professor Dr. Laurence Gormley

Rijksuniversiteit Groningen, The Netherlands

Professor Jo Shaw

University of Edinburgh

Editorial advisory board

Professor Richard Bellamy, University of Reading; Ms. Catherine Barnard, University

of Cambridge; Professor Marise Cremona, Queen Mary College, University of London;

Professor Alan Dashwood, University of Cambridge; Professor Dr. Jacqueline Dutheil

de la Rochere, Universit ` e de Paris II, Director of t ´ he Centre de Droit Europeen, France; ´

Dr. Andrew Drzemczewski, Council of Europe, Strasbourg, France; Sir David Edward

KCMG, Q.C. former Judge, Court of Justice of the European Communities, Luxem￾bourg; Professor Dr. Walter Baron van Gerven, Emeritus Professor, Leuven & Maastricht

and former Advocate General, Court of Justice of the European Communities; Professor

Daniel Halberstam, University of Michigan, USA; Professor Dr. Ingolf Pernice, Director

of the Walter Hallstein Institut, Humboldt Universitat, Berlin; Michel Petite, Director ¨

General of the Legal Service, Commission of the European Communities, Bruxelles;

Professor Dr. Sinisa Rodin, University of Zagreb; Professor Neil Walker, University of

Aberdeen and EUI, Fiesole.

Books in the series

EU Enlargement and the Constitutions of Central and Eastern Europe

Anneli Albi

Market Freedom and Social Rights in the European Economic Constitution

Stefano Giubboni

EU ENLARGEMENT AND

THE CONSTITUTIONS OF

CENTRAL AND

EASTERN EUROPE

ANNELI ALBI

University of Kent

cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK

First published in print format

isbn-13 978-0-521-84541-0

isbn-13 978-0-521-60736-0

isbn-13 978-0-511-12605-5

© Cambridge University Press 2005

2005

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This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place

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CONTENTS

List of tables page viii

Series Editors’ Preface ix

Acknowledgements xi

Table of cases xii

Table of treaties, laws and other instruments xvii

List of abbreviations xxxii

Introduction 1

1 Overview of the accession process 5

2 Constitutional adaptations in the ‘old’ Member States 9

Transfer of sovereign powers: main models 9

Other EU amendments 14

3 Some idiosyncrasies of CEE constitutions 18

Constitutional history of CEE countries 18

Prominence of the constitutions in CEE legal orders 22

‘Souverainist’ character 24

4 Constitutional issues in the pre-accession period 36

Europe Agreements in CEE legal orders 36

Extent of harmonisation and adoption of EU obligations 44

Judicial harmonisation 52

Pre-accession adaptations in the light of sovereignty and legitimacy 56

Issues of democratic deficit in the pre-accession adaptations 61

5 Revision of CEE constitutions for EU membership 67

Wider package of EU amendments 67

Slovakia 67

Czech Republic 70

Slovenia 72

Some common observations 75

v

vi contents

Medium package of EU amendments 78

Poland 78

Hungary 82

Minimal EU amendments 87

Estonia 88

Latvia 94

Lithuania 98

Developments in Romania and Bulgaria 103

Romania 103

Bulgaria 107

Some overarching trends in the EU amendments 110

Assessment in the light of the rationale of a constitution 114

6 Theoretical views of sovereignty and democratic legitimacy

in CEE 122

Delegating sovereignty, preserving independence? 122

Popular sovereignty: from an ethno-cultural to a post-national

concept? 130

7 Referendums 138

Referendum experience: frequent and unsuccessful 138

Public opinion and euroscepticism 146

Accession referendums: procedural ‘manoeuvres’ 149

Implications for the EU treaty amendment procedure 159

8 Membership of NATO and other international

organisations 163

NATO 163

Other international organisations 168

9 Role of Constitutional Courts 170

Ultimate arbiter debate and CEE Constitutional Courts 170

Towards a ‘European constitutional order’? 175

10 Implications of the European Constitution 179

EU’s constitutional reform and involvement of candidate countries 179

A constitution or a treaty? 182

National constitutional limits to integration 183

‘Constitutional’ elements of the European Constitution 186

Changes consolidating the position of Member States 193

National responses 194

Incremental transition towards sovereignty of ‘the peoples

of Europe’? 196

contents vii

Epilogue: ‘Taking constitutions seriously’ in the process

of European integration 206

Bibliography 211

Appendix 232 Index 248

TABLES

3.1 Adoption of new constitutions page 23

3.2 Provisions on sovereignty and independence and their

safeguards 26

7.1 Minimum turnout requirements in CEE referendums 140

7.2 Referendums in CEE (other than EU referendums) 142

7.3 Public support for joining the EU 147

7.4 EU accession referendums 150

A1 Constitutional amendment procedures 232

A2 Amendments of the CEE constitutions (other than those

pertaining to EU accession) 235

A3 EU provisions and application of international law in Slovakian

Constitution 238

A4 EU provisions and application of international law in Czech

Constitution 240

A5 EU provisions and application of international law in Slovenian

Constitution 241

A6 EU provisions and application of international law in Polish

Constitution 242

A7 EU provisions and application of international law in Hungarian

Constitution 243

A8 EU provisions and application of international law in Estonian

Constitution 243

A9 EU provisions and application of international law in Latvian

Constitution 244

A10 EU provisions and application of international law in Lithuanian

Constitution 245

A11 EU provisions and application of international law in Romanian

Constitution 246

A12 Application of international law in Bulgarian Constitution 247

viii

SERIES EDITORS’ PREFACE

The enlargement of the European Union on 1 May 2004 to bring in ten

new Member States, eight of which are in Central and Eastern Europe,

marked a historical shift in the EU. No longer could it be seen as primarily

a creature of Western Europe (plus elements of Southern Europe). On the

contrary, the tumultuous events which accompanied the ending of the

Cold War, including the break-up of several federations (Soviet Union,

Yugoslavia and Czechoslovakia) opened the way for the EU to become

something much closer to a pan-European polity.

Accession involves constitutional change, both on the part of the EU

and on the part of the acceding state or states. This study by Anneli Albi

comprises the first full length study of the impact of accession upon the

constitutions of the acceding states. Although the perspective is primarily

a bottom-up one, looking at the constitutional change in terms of what

were essentially ‘new’ and relatively ‘closed’ constitutions of the post￾Communist era, Albi also brings in constitutional change – EU-style –

in the form of the Constitutional Treaty signed in Rome on 29 October

2004, and due in turn for ratification in each of the twenty-five Member

States. It is clear that change and adjustment, including formal constitu￾tional amendment but also involving the role of numerous judicial actors,

especially constitutional courts, will continue for the foreseeable future

as the EU enters the critical post-enlargement stage.

This book is the first in a new CUP series, Cambridge Studies in Euro￾pean Law and Policy, edited by Laurence Gormley of the Rijksuniver￾siteit Groningen and Jo Shaw of the University of Edinburgh. Albi’s study

responds amply to the series’ aims, namely to produce original works in

English which contain a critical analysis of the state of the law in a partic￾ular area of European Law understood in its widest sense and set out the

perspectives and suggestions for its future development, and to encourage

a range of work on law, legal institutions and legal phenomena in Europe,

including ‘law in context’ work as well as more doctrinally focused expos￾itory work. Of critical importance to Albi’s study are the key political

ix

x series editors’ preface

markers of sovereignty and democracy, in the latter case in the form of

the referendums which were held on accession in each of the new Member

States. Albi’s approach – like many on the EU – is to treat it as a sui generis

polity, which cannot simply be assimilated to national or international

models. However, the interest of the book lies in the unavoidable chal￾lenge of statist concepts and ideas, and whether they continue to have an

important role to play in post-enlargement Europe and in an increasingly

globalised and interconnected world.

Laurence Gormley

Jo Shaw

4 March 2005

ACKNOWLEDGEMENTS

I am grateful to the publishers for their kind permission to incorporate

material from the following articles:

Hart Publishing Ltd for sections from A. Albi, ‘Post-modern Versus

Retrospective Sovereignty: Two Different Sovereignty Discourses in the

EU and Candidate Countries?’ in N. Walker (ed.), Sovereignty in Transition

(Hart, Oxford, 2003), pp. 401–22, and A. Albi, ‘Referendums in the CEE

Candidate Countries: Impact on EU Treaty Amendment Procedure’ in

C. Hillion (ed.), EU Enlargement: A Legal Approach (Hart, Oxford, 2004),

pp. 57–76.

Sweet and Maxwell Ltd for sections from A. Albi and P. Van Elsuwege,

‘EU Constitution, National Constitutions and Sovereignty: An Assess￾ment of a “European Constitutional Order” ’ (2004) European Law Review

(forthcoming).

Kluwer Law International for sections from A. Albi ‘ “Europe” Articles

in the Constitutions of Central and Eastern European Countries’ (2005)

Common Market Law Review pp. 399–423.

xi

CASES

European Court of Justice

Case 16/62, Van Gend en Loos [1963] ECR 1 118

Case 6/64, Costa v. ENEL [1964] ECR 585 118

Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125 170

Euratom Ruling 1/78 [1978] ECR 2151 118

Case 106/78, Simmenthal [1978] ECR 629 170

Case 270/80, Polydor and RSO Records [1982] ECR 229 40

Case 294/83, Les Verts [1986] ECR 1339 187

Case 152/84, Marshall [1986] ECR 723 53

Case 12/86, Demirel [1987] ECR 3719 38

Case C-192/89, Sevince [1990] ECR I-3461 44

Case 18/90, Kziber [1991] ECR I-199 40

Case C-159/90, Grogan [1991] ECR I-4685 177

Case C-179/90, Merci Convenzionali Porto di Genova [1991] ECR I-5889 54

Case C-295/90, Parliament v. Council [1992] ECR I-4193 55

Opinion 1/91, EEA [1991] ECR I-6079 40

Case C-168/91, Konstantinidis [1993] ECR I-1191 174

Case C-450/93, Kalanke [1995] ECR I-3051 177

Case C-262/96, S¨ur¨ul [1999] ECR I-2685 38

Case C-285/98, Tanja Kreil v. Germany [2000] ECR I-69 17

Case C-63/99, Gloszczuk [2001] ECR I-6369 37

Case C-235/99, Kondova [2001] ECR I-6437 37

Case C-257/99, Barkoci and Malik [2001] ECR I-6557 37

Case C-268/99, Jany [2001] ECR I-8615 37, 39

Case C-353/99, Hautala, Opinion of Advocate-General Leger of 10 July 2001, [2001]

ECR I-9565 188

Joined Cases C-20 and 64/00, Booker Aquaculture and Hydro Seafood, Opinion of

Advocate-General Mischo of 20 September 2001, [2003] ECR I-7411 188

Case C-162/00, Pokrzeptowicz-Meyer [2002] ECR I-1049 37, 39

xii

table of cases xiii

Permanent Court of International Justice

S.S. Wimbledon, PCIJ Ser. A. No. 1 (1923) 25 9

Bulgaria

Constitutional Court Decision No. 7, 2 July 1992, on the interpretation of articles

85(3) and 148(1.4) of the Constitution, Durzhaven Vestnik 56/92 44, 109, 172

Constitutional Court Decision No. 5/99, 22 April 1999, on the passage of NATO

aircraft, summary in English at www.infotel.bg/juen/resh/summaries99.htm

167

Constitutional Court Decision No. 6/99, 3 May 1999, on the Agreement between

Bulgaria and NATO regarding Transit of NATO Aircraft, summary at

www.infotel.bg/juen/resh/summaries99.htm 167

Constitutional Court Decision No. 8/99, 16 June 1999, on Cooperation Agreement

with Turkey in Energy Sector, summary in English at www.infotel.bg/juen/resh/

summaries99.htm 173

Constitutional Court Decision of February 2003, on authorisation for fulfilling

obligations under NATO 167

Constitutional Court Decision of 10 April 2003, on the mode of constitutional

amendment 108

Czech Republic

Constitutional Court, Decision No. 19/93, on Lawlessness of the Communist Regime

(1997) 4 East European Case Reporter of Constitutional Law 149 117

High Court of Olomouc, Decision 2A6/96, Skoda 54

Constitutional Court, Decision III.US 31/97–35, Skoda 54

Denmark

Supreme Court, Carlsen v. Rasmussen, judgment 6 April 1998, [1999] CMLR 855 170,

174, 184, 185

Estonia

Constitutional Review Chamber, Decision No. III-4/A–5/94, 30 September 1994,

on the constitutionality of Property Law Enforcement Act, in English at

www.nc.ee/english 55

xiv table of cases

Constitutional Review Chamber, Dissenting Opinion of R. Maruste to the Decision

No. 3-4-1-3-97, 24 March 1997 on seafarers’ passports, in English at

www.nc.ee/english 55

Constitutional Review Chamber, Decision No. 3-4-1-1-98, 5 February 1998, on

Language Law, in English at www.nc.ee/english 134

Constitutional Review Chamber, Concurring Opinion of R. Maruste to the Decision

No. 3-4-1-4-98, 27 May 1998, in English at www.nc.ee/english 55

Constitutional Review Chamber, Vilu and Estonian Voters Union, Decision

No. 3-4-1-11-03 of 24 September 2003, in Estonian at www.nc.ee 92, 156

Constitutional Review Chamber, Kulbok, Decision No. 3-4-1-11-03 of 29 September

2003, in Estonian at www.nc.ee 92, 155, 196

France

Constitutional Council, Maastricht, Decision No. 92-308 DC, 9 April 1992 15, 185

Germany

Constitutional Court, Solange I, BVerfGE 37, 271 (1974) 170, 174

Constitutional Court, Solange II, BVerfGE 73, 378 (1986) 170, 174

Constitutional Court, Brunner, BVerfGE 89, 155 (1993), [1994] CMLR, 57 121, 130,

135, 170, 174, 175, 183–5, 186, 191, 197, 198, 203, 209

Hungary

Constitutional Court, Resolution No. 2/1993 (I.22), (1996) 3 East European Case

Reporter of Constitutional Law 26 117

Constitutional Court, Decision No. 4/1997 (I.22) AB (ABH 1997, 41) 173

Constitutional Court, Decision No. 52/1997, on referendums, reproduced in

L. Solym and G. Brunner (eds), Constitutional Judiciary in a New Democracy:

The Hungarian Constitutional Court (Michigan University Press, 2000),

pp. 371–8 158

Constitutional Court, Decision No. 30/1998, on the Europe Agreement (VI 25) AB,

Magyar Kozl ¨ ony ¨ 56, 172, 173

Constitutional Court, Decision of 23 September 2003, on referendum on sale of land

to foreigners 158

Supreme Court, Decision of 26 March 2003, on EU accession referendum

156