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PEACE programme: Study programme on the interaction between the constitution and Europe
Coordinator: Hélène Gaudin
This project studies what could be a transformation: the notion of the constitution and constitutional law as it is influenced by European Union law and even the European Convention on Human Rights.

FOCUS OF THE STUDY

Research on the characteristics of the European Union depicts an entity that does not fit into the existing categories for international organisations and states.
The European Union also disrupts certain legal categories and concepts, such as the notion of the constitution and constitutional law, because it uses these very epitaphs or it interacts with national constitutional laws.
A theory on the reconciliation of the constitution and Europe thus seems necessary on a scientific basis, in order to align reality and the law.
Based on this reasoning, this project aims to study what could be a transformation: the notion of the constitution and constitutional law as it is influenced by European Union law and even the European Convention on Human Rights.
It falls within research that has already begun elsewhere by specialists of other disciplines, notably constitutional law, as well as within a comparative law perspective, which has led to various publications including an overall collective study published in volume VI of the Annuaire de Droit Européen which was devoted to European constitutional law (Bruylant, 2011).
In this context, the PEACE programme should not be seen as a defence of the EU legal field; on the contrary, it seeks to broaden and enrich the discipline.
Two principal reasons explain the interest of this study:

1.Scientific justification.
Given the reality, research on the interaction between the constitution and Europe is required.
In the field of law, reality is traditionally taken into account through legal classifications.
Such classifications gain relevance through their alignment with reality; the classifications reflect reality but they entail a number of consequences that inform that reality.
Obviously, this premise is far from being proven in the case of the European Union.
The European Union can firstly be defined in what it is not. It is neither an international organisation nor a state. It has very specific traits that do not fall within either of these legal categories.
The European Union’s hybrid nature is found in legal terminology.
It can be classed as an international organisation in relation to its creation, but the European Union has seen its law gradually refined.
In its contact with Member States and national laws, including constitutional laws, the European Union’s law has developed an image of constitutional law.
Taking this as its basis, the Court of Justice of the European Communities began to borrow terminology from internal constitutional systems.
Nonetheless, an attempt to systematise would be useful and erudite at a time when there is a change occurring in the European Union’s laws and national laws (both being required for a full analysis).
As is the case for other laws and disciplines, pragmatism cannot suffice entirely.
The change is shared by the Member States of the European Union and as such, an attempt to systematise will aid in clarifications and dialogues between the states and their legal system.

2.Enrichment of the discipline.
Research on the reconciliation of the constitution and Europe is required for the enrichment of the science of law, a social science that is open to the changes of the world.
In addition to the apparition of an EU constitutional law and the consequences on the national constitutions of countries belonging to European organisations, the principal issue is the emergence of a new, cross-sectoral discipline defined by the connections between an EU constitutional law and national constitutional laws.
This new discipline would be an independent field of European constitutional law.

RESEARCH STRUCTURE

The steps taken during the transitional period between 2000 and 2012 can be measured and new outlooks can be sketched.
The raising of European Union laws to the status of a constitution demonstrates vividly the accumulation of material that can feed theoretical studies, and the movement to a new era.
Proof is given through the system of conventions and the formulation of the Charter of Fundamental Rights of the European Union.
Evidence is also shown through the growing influence of Europe on national constitutions.
As a result, the forming of a theory on a European constitutional law, which is an independent, cross-sectoral discipline that interprets its relationship with national constitutional legal systems, is already possible.
It requires great attention to the methodology issues because such a European constitutional law is shared between various laws and concepts and also falls under the ephemeral notion of the common good.
The research is broken down into three stages, namely the exposition, the study of the various elements, and the final study.
Constitutional law of the European Union.
The existence of a constitutional law can be placed among the EU’s characteristics.
But is there really a constitutional law of the EU? And would it be a constitutional law whose features reflect those of the European Union?
The first topic is thus the existence of a constitutional law of the EU, and its characteristics, because it lacks a written constitution and a state (e.g. from where is power derived?).
Connected to these subjects is the issue of governance and regulation, which contributes to constitutional law.
Nevertheless, regardless of the particular starting point, the constitutional law of the EU contains major topics, such as democracy, or even the three pillars of modern constitutional theory, i.e. the powers of the institutions, the distribution of competences (between the Union and its Member States) and finally fundamental rights.
If all three of these topics are dealt with, it seems important, in the current period, to give a special place in our study to the protection of fundamental rights under the European Union.
At this moment, with the prospective membership of the EU to the ECHR, it seems opportune to reflect on the Court of Justice’s case-law with regard to the Charter of Fundamental Rights and its interaction with national protections and the European Convention of Human Rights.
We could propose a collective discussion of this topic through a symposium on this interaction.

The influence of Europe on national constitutional laws.
This influence has been established by the founding texts of the European Union and national constitutions, and it deserves to be analysed according to its channels and effects.
The term membership was used by the Draft Treaty Establishing a Constitution for Europe.
As for the Lisbon Treaty, it contains an entire section on its Member States and the relations maintained with the Union.
Article 4(2) of the TEU sets out the rights and the code of conduct of the Member States and the Union.
It states: ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.
It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security....’.
This provision is increasingly prominent in the case-law of the CJEU in relation to state primacy and/or structures.
As this notion of membership gains momentum alongside the formation of the European identity of the Member State, the state’s identification is also depicted in the reaffirmation of respect for the national (or constitutional) identity of the Member States.
State participation or European Union membership is reciprocally confirmed in national constitutions, such as Article 88-1 of the French Constitution.
This participation inevitably leads to a number of consequences on national constitutional laws.
The influence can be described in different areas of a state’s constitutional law.
Such influence is noted in the power of review at both its fundamental level and the more complex procedural level.
The basic influence on national constitutions can be described.
Suffice to say here that European influence encompasses the state’s structures (centralised, federal, regional), the state’s values and the functioning of national institutions.
Finally, it is worth noting that constitutional status is now attributed to European Union law which until recently was contested.
The conclusion of this study could be the organisation of a collective work on the European constitution of France.

European constitutional law.
Emanating from the constitutional law of the European Union and the European influence on national constitutions is the notion of a European constitutional law.
The hybrid nature of the EU and the inadequacy of existing categories leads us to believe that the time is ripe to sketch a theory of European constitutional law, similar to what occurred in the 19th century for national constitutional law.
The initial premise is that this concept overlaps the constitutional law of the EU and national constitutions.
Firstly, whether its existence is confirmed or denied, a European constitutional law appears to be less an emergence of a law and discipline than the result of a grouping of laws and disciplines, which nevertheless retain their own existence and identity.
In this way, the emergence of a new subject is perhaps not exclusive to European constitutional law, which merely attests to a change in society.
The second premise is that this European constitutional law is unique, possibly codified by its categorisation as being European, if not by its constitutional categorisation.
The relationships interwoven between national constitutions and European Union law have created or facilitated this constitutional law.
The third premise rests on the possibility of its single, common definition.
It must thus be defined but in a way that can be shared by the European and national laws.
Indeed, the characteristic of a European constitutional law is that it logically and legally envelops those other laws.
Admission to this long-term study requires entering into a specific contract.

 

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