Conference on de facto or implicit Treaty amendments in European Union law

The European Union is a system based on constitutionalism (Craig, 2001; Mancini, 2004; Griller and Ziller, 2008; De Búrca and Weiler, 2011; Isiksel, 2016; Lenaerts and Gutiérrez-Fons, 2018). There are some rules of the game that may not be changed by a political majority, even though the EU does not formally have a constitution (but it has fundamental Treaties that act as ‘constitutional’ texts). Respect for the fundamental rights is an obvious example: to take one extreme but obvious example, the European Parliament and the Council could not pass a Regulation that abolishes one of the rights contained in the Charter.

The Treaties foresee procedures for their amendment which, as it is to be expected, differ significantly from the ordinary legislative procedure (Peers, 2018). There is an ordinary procedure (Article 48(2)-(5) TEU) and other procedures (Article 48(6) and 48(7) TEU). Treaties are also amended upon accession and withdrawal of Member States. 

The constitutionalism of the European Union is particularly flexible (De Búrca and Scott, 2000). The Lisbon Treaty in particular is ‘the political bargain established by the EU Treaties which is incomplete, vigorously dynamic, and unstable’ (Tridimas, 2023). As a result, the text of the Treaties changes, or even when the text does not change, its interpretation does. 

This conference will explore instances in which the EU Treaties are amended – either because the text is changed, or because the interpretation evolves, or because a new understanding of a Treaty provision or principle emerges – but not following the procedures foreseen in the Treaties themselves. These may be considered implicit, or de facto, Treaty amendments, although where the evolutionary/dynamic interpretation of a provision ends and where the de facto amendment of that provision begins is a matter of debate. 

We are particularly interested in mapping areas in which this happens with a view to finding:

• Sources/actors.

   

  • Can the interpretation of a provision given by the Member States change overtime so much as to amount to a de facto Treaty amendment? E.g. has the procedure for accession to the EU been interpreted in such a way as to amount to implicit constitutional amendment?
  • Can the interpretation of a provision given by the EU institutions change overtime so much as to amount to a de facto or implicit Treaty amendment? E.g. in the area of Economic and Monetary Union or EU budget law (regarding, most recently, the Next Generation EU and the Recovery and Resilience Facility). Are (some of) these amendments a result of shifting ‘constitutional ideology’?
  • Can the interpretation of a provision given by the Court of Justice of the EU amount to a de facto Treaty amendment? Are there limits to how far the interpretation of a provision can stray from a literal reading? E.g. in the area of the Court’s jurisdiction over Common Foreign and Security Policy (Article 275 TFEU); in the procedure governing the withdrawal of a Member State (Article 50 TEU); or in the area of Economic and Monetary Union (e.g., regarding the interpretation of the no-bailout clause).

  • Can the practice of a body that applies EU law amount to an implicit constitutional amendment? E.g. the Article 255 Panel for the appointment of CJEU judges (Article 255 TFEU).

     

• Possible explanations.

   

  • Is it the wording (i.e. the open-nature or the silence) of a provision that makes it particularly amenable to so diverging interpretations over time that one may only consider that it has been de facto amended?
  • Is it the salience of a provision?
  • Is there an issue with the procedures for Treaty amendment? It is interesting to note that, per the Court’s case law (Pringle), one cannot use a simplified Treaty revision to increase the competences conferred on the Union in the Treaties (see Article 48(6) TEU), but the same result could be achieved with an ‘implicit’ amendment.

  • Is it something else, for example the conflicting social or institutional forces that strive to impose a certain reading of a provision?

     

• Limits.

   

  • Is there a ‘supra-constitutional’ core of values or principles that limits what constitutional amendments (explicit and a fortiori implicit) are permissible in EU law?

  • On the basis of that ‘supra-constitutional’ core, are implicit constitutional amendments ever permissible or only in some circumstances? Do the types of acceptable argument vary between constitutional institutions, with sub-ideologies permitting or excluding different types of argument (Barber, 2024)?

     

• Assessment.

   

  • Can the boundary between the evolutionary interpretation of a provision and a de facto Treaty amendment be traced by considering the implications of the ‘new’ interpretation for citizens, institutions, or societal groups?
  • Who, and by what means, should monitor the legality of implicit constitutional amendments? 
  • Does the answer to any or all of the questions above depend on a theory of constitutionalism? On a theory of interpretation? Or on something else?

Programme