POMFR: Constitutional Review in Europe – A Comparative Analysis

The 20th century has witnessed an impressive rise of constitutional justice, in particular as regards the emergence of and role given to constitutional courts in many European countries and the CJEU at the supranational level. A lot of literature has covered aspects of this development, and in the academic debate several authors have also voiced criticism of this court-centred constitutionalism and academic obsession with courts. This can be seen e.g. in the recent issue of the German Law Journal which features a number of contributions on the Political Constitution as a counter movement. In this rich context, Maartje de Visser examines two questions in her book Constitutional Review in Europe: First, who should uphold the Constitution, and second, how is constitutional review organised? In an attempt to answer these questions, she scrutinizes the legal order of 11 European countries and the EU legal order. In this post, I will first briefly set out the structure and content of the book in some more detail, before offering some praise and criticism.

Each of the seven chapters follows a somewhat similar basic structure: In each chapter, the author discusses one particular phenomenon from several angles, using the most relevant national constitutional legal regimes or, if pertinent, the EU legal order as case studies, and she then concludes with some general comparative reflections.

Chapter 1 examines the role of non-judicial actors in upholding the Constitution. It thus forms already a welcome remedy to the danger I mentioned initially of focusing obsessively on constitutional courts. The author discusses the role of various institutions, such as councils of state, chancellors of justice, heads of states and the people as an institution. Of particular interest are the cases where such institutions and constitutional courts disagree and how a constitutional legal order deals with these situations (see e.g. pp. 18 ff. on Belgium).

The second chapter traces the rise of constitutional adjudication from an historical perspective. It features the rather well-known examples of the ‘old’ German and Italian constitutional courts, but also the changing fate and role of the Polish constitutional court through the 1980s and 1990s. Also, it discusses insightfully the Dutch and UK legal regimes as ‘outliers’ that insist on upholding the constitution without following the Kelsenian model of a constitutional court, but increasingly feel the external pressure – as do all other Member States – on their constitutional system exercised in particular by EU and ECHR law.

Chapter 3 examines the purposes of constitutional adjudication and as a related subject access to constitutional courts. Four purposes of such adjudication can be distinguished: ensuring that the legislature does not overstep constitutional boundaries; protecting the rights of individuals in specific situations; resolving inter-institutional disputes; and ensuring the integrity of the political office and process. As regards access to courts, the discussion of preliminary reference procedures is particularly fascinating and shows differences between countries with centralized and decentralized constitutional review systems (see e.g. p. 133 on the Nordic countries).

The fourth chapter analyses the constitutional bench, i.e. such factors as appointment procedures, numbers of judges, eligibility requirements to become a constitutional judge or tenure.

Chapter 5 turns to the sources of standards for constitutional review. It identifies individual strategies of constitutional courts using norms to extend their review competence (see e.g. p. 231 ff. on the Belgian Constitutional Court). However, it also finds commonalities such as the general reliance on unwritten principles as grounds for review witnessed in virtually all examined legal orders, or the ever-increasing relevance of ‘external’ norms of EU and ECHR law as sources of inspiration and grounds for review (p. 279 ff.).

The sixth chapter deals with the topic of testing and remedying unconstitutionality. For this purpose, the author assembles a number of techniques and interpretative doctrines applied by various constitutional courts, such as wide-spread deference rhetoric, the theory of the living law or constitution-conform interpretation. In a second part, the chapter turns to the various possible types of judgments and their effect, with interesting remarks on temporary effects (e.g. temporary constitutionality), ex nunc and ex tunc effects or judgments that pronounce incompatibility of a law with constitutional standards without annulling it (p. 309 ff.).

Chapter 7 eventually switches to the interplay between constitutional courts and other actors. Legislatures, ordinary courts, other constitutional courts, the European Court of Justice and the European Court of Human Rights are examined in turn. Much of this may be known to readers with a background in comparative European constitutional law, but at least for me some sections were veritable discoveries, such as the systematic discussion of examples of legislative and constitutional overrides (p. 354 ff.).

Let me now turn to my own assessment of the book. As mentioned, the book is based on the promising, highly ambitious research questions of who should uphold the constitution and how constitutional review is organised. However, as de Visser clarifies herself, early in the book, the aim of her study “is not to put forward best practices as regards the design and functioning of constitutional review either at a national level or within the Union legal order” (p. 6). Instead, the author wants to provide the reader with materials and arguments for thinking about constitutional review as an institution. As a consequence, the resulting study is much more descriptive in nature than one would perhaps first have expected in light of the underlying research questions. Some readers might be  disappointed not to find a clear common thread in the book. Indeed, the danger of becoming anecdotal is at some points not far away (see e.g. the discussion of the role of the media and in particular the internet as factors shaping a constitutional system including constitutional review at p. 49). Also, it comes as no surprise that the final conclusion drawn by the author remains somewhat declaratory and open-ended:

 “To conclude, the spectacular rise of constitutional justice has been one of the most prominent constitutional trends in twentieth-century Europe. […] Time will tell whether the twenty-first century will bring further ‘waves’ of constitutional justice and the consolidation of a strong form of constitutional adjudication (either in a centralised or more mixed form) in the countries within the EU and the Union itself, or whether the pendulum will swing back somewhat and we will see a more prominent role for non-judicial institutions in ensuring that constitutions, their values and principles are duly respected.” (p. 440, footnotes omitted)

At the same time, however, de Visser’s approach has great merit of its own. A core thesis to be verified or falsified would have necessarily required the author to be more selective – and exclusive – in using features of the regimes of constitutional review to support her claims, at the expense of comprehensiveness. With the chosen approach, de Visser picks and chooses freely, though with great care, and manages to assemble a fascinating compilation of case studies of important legislative or jurisprudential developments to demonstrate institutional differences and their potential consequences. If we thus look at the book more as a resource book than as a research thesis, its true potential unfolds. Not only has the author accomplished a remarkable feat with the number and diversity of legal orders she examines. She also provides indeed a vast array of resources, assembling important scholarly contributions in each legal order as well as translations of crucial parts of the jurisprudence and concise summaries of important constitutional sagas that many constitutionally curious scholars may have already heard of, but never had the time or resources to engage with in sufficient detail.

Furthermore, the author also takes great care in ensuring that the chosen legal regimes are representative. De Visser’s sample of legal regimes thus encompasses, as she points out (p. 7), what is typically designated as strong and weak forms of constitutional review, legal regimes from all geographical parts of the continent and older and newer regimes of constitutional review. As a mere side-thought of a geographically biased non-EU based scholar, I would perhaps dare to add that comparisons with Switzerland’s legal regime could have been interesting as well, in particular as regards the particular challenges faced in Switzerland in the absence of a true constitutional court and ever more frequent clashes between the unique instruments of direct democracy of the Swiss legal order with the country’s obligations under international law such as the Swiss-EU Bilateral Agreements. But it is of course clear that no one could legitimately reproach the author of not having gone far enough in her impressively vast comparative endeavour.

To conclude, the book is a highly welcome contribution as a well-researched handbook for all those interested in comparative constitutional legal studies in the Member States’ and the EU constitutional legal order. Although following a rather descriptive path, it offers plenty of ‘pistes de refléxion’ in the concluding section of each chapter and assembles a very helpful sample of legislative, jurisprudential and institutional developments in a well-chosen array of constitutional regimes of the EU and EU Member States.