Contribution to discussions about existence of the constitutional law of the European Union
Authors: Zečević Slobodan 
Published: June 2023

In relation to the topic, the formal absence of a legal text called the constitution of the European Union is noticeable. Simple logic dictates the conclusion that in absence of European constitution, there is no constitutional law of the European Union. However, the reality is much more complex than it seems. The United Kingdom, for example, does not have a written act called a constitution, but instead several constitutional contents whose sources are in laws, legal practice and so-called constitutional customs. Germany also formally does not have a constitution, but a Fundamental Law that pursue a constitutional role. The term is not apparently so important but the status of the text. The constitution is a set of norms that are supreme, stable and difficult to change. It accords competences to the state bodies and guarantee essential civil rights and freedoms. The relevant question in this case is the existence of constitution and constitutional law of the European Union, not in a formal, but in an essential sense. The European Union does not have the characteristics of a unitary, but could it be considering as a federal state? In political-legal theory, opinions appeared that such a thing is impossible for the following reasons. As an example of the emergence of a federal state, the history of the United States of America is cited. According to the constitution of 1878, the US received competences in foreign affairs, defense, monetary policy, as well as in the field of protection of fundamental rights and freedoms. The European Union rested on the process of federalization in the economic area. The treaties establishing the Community and the Union have merged the national markets of the member states into one. Originally the European Communities did not have powers in foreign affairs, defense, security and justice. Only in 1993, with the Maastricht Treaty, the newly created European Union get the possibility to take decisions in the aforementioned areas, but even then federal mechanisms were not applied. The rule was unanimous decisions of represents of member states government reassemble in the Council of EU. The state sovereignty was preserved. For the obvious lack of authority at the supranational level, the European Union cannot currently be considered as a classic federal state. However, it can be observed as a sort of federal community, which was originally intended to evolves into something more than that. In a historical sense, this situation in itself is not new. It also appeared in the 19th century with the so-called emerging federal states such as the United States of America, the Swiss Confederation, Germany, Canada or Australia. However, the European Union is a permanent political-legal structure that has certain attributes of a federal state. The notion of a federal community, allows to take into account the essential role of the member states in such system of integration. The federal community as a permanent entity, rests on the contractual relationship that defines the common goals of its members. The aforementioned goals in practice change the internal conditions in the member states, but also their global political status. Several indications point to the federal nature of the European Union. The use of the term Union is not harmless. The founding fathers of the US Constitution of 1878, called their new created federal state Union in order to mark the difference with the previously existing Confederacy. The inspires of the European Union in the constitutive treaty emphasize that its main goal is to constantly create closer ties between European nations. This sentence indirectly indicates a strong, integrative, federal dynamic. In its legal practice, the Court of Justice does not ignore the initial international nature of constitutive treaties, but points to the following. The treaties establishing the Communities and the European Union represent the basis of an independent, hierarchically organized legal order, the kind that states have. As the highest legal act and source of law, they have a constitutional function. The law of the European Union is directly integrated into the law order of the member states and has primacy in relation with the national law. The legislative acts of European derivative law (regulations, directives, decisions) cannot contradict the provisions of the founding treaties. Like the Supreme Court in a federal state, the Court of Justice of the European Union control the compliance of legislative acts with constitutive treaties. The same principle applies in the field of international relations. An international agreement concluded by the European Union or its member states must be in accordance with the provisions of the founding treaties. Their constitutionality is checked by the Court of Justice. The Lisbon Treaty gave the European Union another federal distinction. It recognizes to the European Union a possession of legal personality, which means a full legal capacity to conclude international agreements with other countries and international organizations. The division of competences between the federal state and its members is for many the essence of the federalist legal order. The parallel existence of two levels of government imposes the need to clearly demarcate the fields of action of one and other authorities. In 2009 the Treaty of Lisbon established a principled delimitation of European and national competences. This is another step in the direction of federal legal regulation. The existence of European citizenship gives to the European Union one more federal characteristics. European citizens acquire rights and obligations parallel to those related to national citizenship. Opponents of such a solution were those who believed that the Union represents only an international organization. The founding treaties assign competences to the institutions of the Union, as well as guarantee basic human rights and freedoms. The legislation of the European Union determines the functioning of the member states and in many areas directly or indirectly governs the life of their citizens. Treaties establishing the European Union have in practice a constitutional role and value.