Member States’ Constitutions and EU IntegrationWorkshop: Vienna, June 13th – 14th, 2013

The Greek constitution The Greek constitution and EU integrationand EU integration

Dr. Lina PapadopoulouDr. Lina PapadopoulouAss. Professor of Constitutional LawAss. Professor of Constitutional Law

Aristotle University of Thessaloniki, GreeceAristotle University of Thessaloniki, Greece

Some historical facts about Greece and EUSome historical facts about Greece and EU

first country to sign an Association Agreement with the first country to sign an Association Agreement with the EEC 1961 EEC 1961 The The ““Athens AgreementAthens Agreement”” = accession within 22 years = accession within 22 years frozen for seven years (1967frozen for seven years (1967--1974) due to military 1974) due to military regimeregimeEnd of monarchy through a free and fair referendum End of monarchy through a free and fair referendum (December 1974) (December 1974) New democratic Constitution 11/6/1975New democratic Constitution 11/6/197512/6/1975 Greece applied for full membership12/6/1975 Greece applied for full membershipjoined in 1981 (10joined in 1981 (10thth member)member)

Public International Law Public International Law in the Greek Constitution (in the Greek Constitution (grCgrC))

Article 2 Article 2 1.1. Respect and protection of the value of the human being constitutRespect and protection of the value of the human being constitute the e the

primary obligations of the State.primary obligations of the State.

2.2. Greece, adhering to the generally Greece, adhering to the generally recognised rules of international law, recognised rules of international law, pursues the strengthening of peace and of pursues the strengthening of peace and of justice, and the fostering of friendly justice, and the fostering of friendly relations between peoples and States.relations between peoples and States.

Constitution and public international lawConstitution and public international law

articlearticle 28 of the Constitution28 of the Constitution declares the place declares the place of Public International Law within the Greek of Public International Law within the Greek legal orderlegal orderSedesSedes materiaemateriae for every new step towards for every new step towards European integration European integration

11stst par = traditional international law par = traditional international law 2bd par = transfer of competences to international 2bd par = transfer of competences to international organisationsorganisations33rdrd par = restrictions to the exercise of sovereignty par = restrictions to the exercise of sovereignty

Art 28 (1) Art 28 (1) grConstgrConst

1.1. The generally recognised rules of international law, as The generally recognised rules of international law, as well as international conventions as of the time they well as international conventions as of the time they are sanctioned by statute and become operative are sanctioned by statute and become operative according to their respective conditions, according to their respective conditions, shall be shall be an integral partan integral part of domestic Greek law and of domestic Greek law and shall shall prevail over any contrary statutory provisionprevail over any contrary statutory provision. . The rules of international law and of international The rules of international law and of international conventions shall be applicable to aliens only under conventions shall be applicable to aliens only under the condition of reciprocity.the condition of reciprocity.

Article 28 of ConstitutionArticle 28 of Constitution

Par. (1) = treaties and the generally accepted Par. (1) = treaties and the generally accepted rules of international law are rules of international law are an integral part of an integral part of the domestic lawthe domestic law of Greece and of Greece and

Public International Law Public International Law is formed by all the treaties Greece is a party to is formed by all the treaties Greece is a party to is also part of public lawis also part of public law

prevail over any contrary statutory provisionprevail over any contrary statutory provisiontreaties and generally accepted rules of treaties and generally accepted rules of international law are superseded by the provisions international law are superseded by the provisions of the Constitution itself of the Constitution itself (?)(?)

The constitutional foundation of EU membership: The constitutional foundation of EU membership:

aart 28 par 2 & 3 rt 28 par 2 & 3 grCgrC**

allow the transfer of constitutional powers to allow the transfer of constitutional powers to international organizations and international organizations and the restriction of national sovereignty the restriction of national sovereignty conditionsconditions ==

respect of rights respect of rights Democracy Democracy Procedural requirements Procedural requirements

** ‘‘Interpretative clauseInterpretative clause’’ (since 2001): (since 2001): ““Article 28 constitutes the foundation for the Article 28 constitutes the foundation for the participation of the Country in the European integration participation of the Country in the European integration process.process.””

Art 28 (2) & (3) Art 28 (2) & (3) grCgrC

2. 2. CompetencesCompetences provided for by the Constitution may by treaty or provided for by the Constitution may by treaty or agreement be agreement be vestedvested in agencies of in agencies of international organizationsinternational organizations, when , when this serves an important national interest and promotes cooperatthis serves an important national interest and promotes cooperation ion with other States. A with other States. A majority of threemajority of three--fifthsfifths of the total number of of the total number of Members of Parliament shall be necessary to vote the law sanctioMembers of Parliament shall be necessary to vote the law sanctioning ning the treaty or agreement. the treaty or agreement.

3. Greece shall freely proceed by law passed by 3. Greece shall freely proceed by law passed by an absolute majorityan absolute majority of of the total number of Members of Parliament the total number of Members of Parliament to limit the exercise of to limit the exercise of national sovereigntynational sovereignty, insofar as , insofar as

this is dictated by an important national interest, this is dictated by an important national interest, does not infringe does not infringe

upon human rights upon human rights and the foundations of democratic government and the foundations of democratic government

and is effected on the basis of and is effected on the basis of the principles of equality and the principles of equality and under the condition of reciprocity.under the condition of reciprocity.

Art 28 Art 28 grCgrC

Integrative functionIntegrative function

Constitutional mandate to Constitutional mandate to state organs state organs

to omit actions against to omit actions against integration integration

Joint Reading of the 2 Joint Reading of the 2 parasparas

Mainstream view: Mainstream view: Joint ReadingJoint Readingboth both parasparas may be read in conjunction: they regulate may be read in conjunction: they regulate the same thing the same thing

all procedural conditionsall procedural conditionsspecial majority of 3/5 (180 out of 300) (par 2)special majority of 3/5 (180 out of 300) (par 2)

and substantive conditionsand substantive conditionsProtection of human rights and democracy Protection of human rights and democracy

Place of Treaties & secondary Place of Treaties & secondary Community law lawCommunity law law

Primary and secondary priorPrimary and secondary prior to accession supersedes to accession supersedes the ordinary domestic legislation due to the ordinary domestic legislation due to

Article 28 Article 28 parapara. 1 = . 1 = ““the generally recognised rules of the generally recognised rules of international law, as well as international conventions as of international law, as well as international conventions as of the time they are ratified by statute and become operative the time they are ratified by statute and become operative according to their respective conditions, shall be an integral according to their respective conditions, shall be an integral part of domestic Greek law and shall part of domestic Greek law and shall prevail over any prevail over any contrary provision of the lawcontrary provision of the law””. .

Secondary posteriorSecondary posterior secondary EU lawsecondary EU lawArticle 28 Article 28 parapara. 2 = it acknowledges . 2 = it acknowledges regulatory powers to regulatory powers to international organisationsinternational organisations

the product of this authorisation is mandatory. the product of this authorisation is mandatory.

EU law and the judiciaryEU law and the judiciary

Council of State = the Supreme Administrative Council of State = the Supreme Administrative Court Court –– SimvoulioSimvoulio EpikratiasEpikratias))receptive attitudereceptive attitudeEU law = constitutes part of the domestic set of EU law = constitutes part of the domestic set of rules in its entirety rules in its entirety = fully enforceable = fully enforceable domestic courts must examine on their own domestic courts must examine on their own motion the compatibility of domestic law motion the compatibility of domestic law towards the EU lawtowards the EU law

EU law and the judiciaryEU law and the judiciary

prevalence of EU law over ordinary legislationprevalence of EU law over ordinary legislationif the domestic legislation is absolutely at odds if the domestic legislation is absolutely at odds with an EU provision and cannot be rescued with an EU provision and cannot be rescued within the boundaries of the permitted judicial within the boundaries of the permitted judicial interpretation the former provision will not interpretation the former provision will not apply apply NO explicit regulation of institutional NO explicit regulation of institutional relationship between the national constitution relationship between the national constitution and the EU lawand the EU law

The jurisprudential approachThe jurisprudential approachon relationship between constitution on relationship between constitution

and EU lawand EU law

Council of State & Council of State & AreiosAreios PagosPagosNot acknowledged supremacy of EU lawNot acknowledged supremacy of EU lawa rather reserved attitude a rather reserved attitude declared the declared the inviolability of the domestic Constitution inviolability of the domestic Constitution emphasis on the emphasis on the unique nature of the amendment unique nature of the amendment proceedingsproceedingsrequiring increased majorities and national elections between threquiring increased majorities and national elections between the e Assembly initiating the process of revision and the one Assembly initiating the process of revision and the one eventually fulfilling iteventually fulfilling it

Argumentation against the Argumentation against the prevalence of EUprevalence of EU

strict literal approach of the Constitutionstrict literal approach of the Constitutioncouldcould not contain a selfnot contain a self--restraint clause open to a selfrestraint clause open to a self--abolition abolition the Constitution prevents the the Constitution prevents the nationalnational legislature from legislature from introducing ruling in conflict with the provisions of the introducing ruling in conflict with the provisions of the ConstitutionConstitutionCould not allow an Could not allow an international international organ to trespass the organ to trespass the constitutional shell constitutional shell

the international forum would be more powerfulthe international forum would be more powerfulalthough enjoying far less democratic legitimacy and direct although enjoying far less democratic legitimacy and direct accountabilityaccountability

Dissenting opinionDissenting opinion

dissenting opinion of the decision 2809/1997 of the dissenting opinion of the decision 2809/1997 of the Council of State Council of State provisions of Article 28 of the Constitution are provisions of Article 28 of the Constitution are essentially of a essentially of a ““quasi amending naturequasi amending nature””

= indirect / implicit amendment of the Constitution = indirect / implicit amendment of the Constitution independently of the regular amendment procedure independently of the regular amendment procedure elaborately presented in Article 110 of the Constitutionelaborately presented in Article 110 of the Constitutiona pragmatica pragmatic--historical argumenthistorical argumentE.g. article 4 par. 4 reserving in principle the right of accessE.g. article 4 par. 4 reserving in principle the right of accessto the public sector only for nationalsto the public sector only for nationals

EuropeEurope--friendly reading of the friendly reading of the ConstitutionConstitution

““the enrichment of the interpretation of law in general, the enrichment of the interpretation of law in general, and the interpretation of the Constitution in specific, and the interpretation of the Constitution in specific, with a cognitive process that enables it to sufficiently correspwith a cognitive process that enables it to sufficiently correspond ond to the new historical fact of to the new historical fact of the European dimension that the function of law seems to the European dimension that the function of law seems to acquireacquire……The interpreter, while approaching his object, must examine the The interpreter, while approaching his object, must examine the impact of European law impact of European law on the meaning of the interpreted rule, on the meaning of the interpreted rule, thus taking into consideration the broader system of the thus taking into consideration the broader system of the European legal culture to which Greek law is incorporatedEuropean legal culture to which Greek law is incorporated””(Tsatsos, 1994). (Tsatsos, 1994).

Majority responseMajority response

rigidity of the Constitution would be rigidity of the Constitution would be circumventedcircumventedsince the accession was not materialized through since the accession was not materialized through a constitutional Assembly, there can be no a constitutional Assembly, there can be no de de facto facto constitutional amendmentconstitutional amendmentThe The ““no issueno issue”” approachapproachCouncil of State avoided to refer to ECJ in cases Council of State avoided to refer to ECJ in cases of possible tensionof possible tension

Fields of tensionFields of tension

1.State monopoly of university education

2.Incompatibility of mass media company owners and EU directives on public contracts

Higher education Higher education

Article 16 par. 5 Article 16 par. 5 grCgrC..““Education at university level shall be provided Education at university level shall be provided exclusively byexclusively by institutions which are fully selfinstitutions which are fully self--governed governed legal persons of public lawlegal persons of public law. These . These institutions shall operate under the supervision institutions shall operate under the supervision of the State and are entitled to financial of the State and are entitled to financial assistance from it; they shall operate on the basis assistance from it; they shall operate on the basis of statutorily enacted byof statutorily enacted by--lawslaws””Public universities only Public universities only

Case law of Council of StateCase law of Council of State

Did not refer to ECJDid not refer to ECJInterpreted the Directive on recognition of Interpreted the Directive on recognition of diplomas diplomas Major shareholder Major shareholder It referred lately It referred lately ECJ = hidden supremacy of EU lawECJ = hidden supremacy of EU lawIn practice In practice

The role of constitutional revisionThe role of constitutional revisionAnd politicsAnd politics

T h a n k Y o u T h a n k Y o u

Lina PapadopoulouLina PapadopoulouAss. Professor of Constitutional Law

Jean Monnet Chair for European Constitutional Law and CultureSchool of Law - Aristotle University of Thessaloniki, Greece

linapapa@gmail.com