Lecture 11 (Constitutional Law & Political Institutions)
Distinct Legal Architectures: The European Union versus the Council of Europe
The contemporary European institutional landscape encompasses two separate legal orders that operate under distinct international treaties, institutional mandates, and jurisdictional boundaries: the European Union and the Council of Europe.
The European Union currently consists of member states. This figure represents the post-Brexit composition following the formal withdrawal of the United Kingdom in , reducing the membership from its previous total of (). In contrast, the Council of Europe is an entirely separate international organization founded upon the European Convention on Human Rights. It maintains its judicial organ, the European Court of Human Rights, situated in Strasbourg. The Council of Europe operates independently of the European Union, possessing an expansive membership that formerly stood at , subsequently , and currently encompasses member states following the expulsion and formal departure of the Russian Federation in the wake of its military aggression against Ukraine. Although every member state of the European Union is simultaneously a state party to the Council of Europe, the territorial and legal scope of the two organizations does not coincide.
From a structural and jurisprudential perspective, the Council of Europe operates as a traditional international organization founded upon classic interstate cooperation. While judgments rendered by the European Court of Human Rights in Strasbourg have occasionally invoked the notion of an evolving European constitutional order, the organization remains intergovernmental. A member state can unilaterally sever its legal ties through a simple diplomatic declaration, as demonstrated by the withdrawal of the Russian Federation. Conversely, the European Union is classified legally as a sui generis order—meaning "of its own kind" in Latin—representing an unprecedented quasi-constitutional system. The structural depth of Union integration renders disengagement remarkably complex; the withdrawal process of the United Kingdom under Article of the Treaty on European Union required five years of contentious negotiations and remains ongoing in its practical ramifications.
Philosophical Foundations and the Functionalist Method of European Integration
The genesis of the European Union lies in the deliberate transition from conventional international cooperation to deep supranational integration. Whereas traditional international law preserves sovereign autonomy by mediating treaty-based cooperation among independent states, European integration was purposefully designed to pool national sovereignty across strategic domains. This conceptual paradigm emerged during the reconstruction period following the Second World War, pioneered by Robert Schuman and Jean Monnet.
Robert Schuman, serving as the French Minister of Foreign Affairs, provided the political vision for this new supranational model. Schuman held German citizenship alongside his French nationality earlier in his life, personifying the binational reconciliation at the heart of his foreign policy. In his historic address of May , , Schuman presented a strategy formulated specifically to eliminate the possibility of armed conflict between historic adversaries, France and Germany, as well as their immediate geographic neighbors. Recognizing that unilateral security guarantees had failed historically, Schuman proposed placing the foundational means of industrial warfare under a shared supranational authority. By coordinating and consolidating the primary production of coal and steel—the indispensable raw materials of heavy industry and postwar reconstruction—future war between France and Germany would become not merely unthinkable, but materially impossible.
Schuman’s functionalist doctrine rejected the immediate creation of a comprehensive federal constitution, advocating instead for progressive, sector-specific consolidation. As declared in the May address: "Europe will not be made all at once or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity." By integrating critical, discrete economic sectors first, functional interdependencies would gradually expand into broader spheres of governance.
Working behind the scenes was Jean Monnet, who directed the French Commissariat général du Plan in . This non-elected, administrative agency managed the strategic allocation of American financial assistance provided through the Marshall Plan for domestic reconstruction. Having previously operated as an international businessman who spent extensive periods residing in the United States, Monnet drew inspiration from the American federal structure, concluding that post-war recovery and geopolitical competitiveness necessitated the emergence of a "United States of Europe." Monnet championed an incrementalist, technocratic strategy that masked long-term federalist ambitions under technical economic frameworks. This methodology is reflected in statements attributed to Monnet: "Europe's nations should be guided towards a super state, that would mean the federation, European federation, without their people understanding what is happening. This can be accomplished by successive steps, each disguised as having an economic purpose, but will eventually and irreversibly lead to federation." An additional aphorism underscores this incremental teleology: "I don't care about steel and coal, it's Europe I want to make." Although European integration has not culminated in a formal federal state, it has expanded far beyond its original industrial origins into comprehensive economic, financial, political, and partial defense integration.
Historical Evolution and Treaty Framework from Paris to Lisbon
The legal architecture of the European Union was constructed through successive international treaties that progressively widened its substantive jurisdiction and expanded its institutional authority.
The integration process began in with the Treaty of Paris, which established the European Coal and Steel Community (ECSC). In , the Treaties of Rome created two additional entities: the European Economic Community (EEC) and the European Atomic Energy Community (Euratom). Together, these three organizations were designated collectively as the European Communities. The system retained this plural framework until the signature of the Treaty of Maastricht in , which restructured the communities into a singular, unified entity: the European Union. Subsequent revisions—namely the Treaty of Amsterdam (), the Treaty of Nice (), and the Treaty of Lisbon ()—functioned not as separate independent regimes, but as comprehensive structural amendments to the foundational framework established at Maastricht.
The Treaty of Maastricht represents a pivotal turning point in European constitutional history. It codified the establishment of the European single market, set the institutional timetable and criteria for the introduction of the single European currency (the euro, formally launched in -), and instituted a distinct European Union citizenship. Under this legal status, individuals holding citizenship in any member state acquired political rights across the Union, including the right to vote and stand as candidates in municipal and European Parliament elections in whichever member state they legally reside, irrespective of their original nationality.
Parallel to its substantive deepening, the Union underwent continuous territorial enlargement driven by European geopolitical transformations. From its six founding members in the s—France, West Germany, Italy, Belgium, the Netherlands, and Luxembourg—the Union expanded to states with the accession of Croatia in , before contracting to following Brexit. Accession waves consistently reflected democratic transitions across the continent. Greece acceded in following the collapse of the military Regime of the Colonels, while Spain and Portugal joined in following the democratization of their respective polities after the Franco dictatorship and the Salazar regime. The largest single expansion occurred following the fall of the Berlin Wall and the dissolution of the Soviet Union, as former Eastern bloc nations restructured their legal and economic orders from centralized socialist systems to market economies in order to integrate into the European internal market.
Under primary treaty law, European Union enlargement remains an open process. The treaties impose no statutory ceiling on membership, stipulating only that candidate states must be located within the European continent and satisfy strict political and economic criteria. Official candidate status constitutes a formalized legal relationship managed by the European Commission, which provides institutional oversight, technical guidance, and economic counsel for national structural reforms. Currently, six candidate states hold official status, including Ukraine, Albania, and North Macedonia, while earlier candidacies, such as that of Turkey, have ceased active progression.
The Constitutional Architecture and Separation of Powers in the European Union
The primary law of the European Union serves as its functional constitutional charter, divided across two complementary legal instruments: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The TEU outlines the overarching democratic principles, constitutional values, and structural separation of powers governing the Union. The TFEU establishes the specific operational, organizational, and functional mechanics across Union competences. Primary law also incorporates the enduring provisions of the Euratom Treaty and, crucially, the Charter of Fundamental Rights of the European Union. Originally proclaimed at Nice in and entering into force in , the Charter was formally elevated to binding primary law by the Treaty of Lisbon in . Consequently, the European Union possesses the dual material requirements of a written constitution: an institutional system of separated powers and an enforceable charter of fundamental rights.
The institutional framework responsible for exercising Union powers comprises seven principal bodies under the TEU: the European Parliament, the European Council, the Council of the European Union, the European Commission, the Court of Justice of the European Union, the European Central Bank, and the Court of Auditors.
The European Council consists of the heads of state or government of the member states, accompanied by its own President and the President of the European Commission. Historically operating as informal summitry known as "European summits" to address systemic crises, financial reforms, or common foreign policies, the European Council was officially codified as a distinct Union institution by the Treaty of Lisbon in . Meeting at least four times annually, it exercises no formal legislative functions but operates as a supreme executive authority providing macroeconomic direction, institutional momentum, and geopolitical priorities.
The European Commission serves as the Union's executive and administrative branch, mandated to represent and defend the autonomous general interests of the Union rather than national priorities. It comprises a College of Commissioners totaling members—one from each member state—appointed through mutual agreement among national governments and subject to a vote of investiture by the European Parliament. The Commission holds an institutional monopoly on legislative initiative, formulating draft legislation required to implement treaty provisions. It exercises external diplomatic representation of the Union—embodied by figures such as the President of the Commission, Ursula von der Leyen—manages the Union's operational budget, and exercises fiscal surveillance over member states' budgetary policies, debts, and deficits.
The Council of the European Union (designated as the Council of Ministers or the Council) functions as an intergovernmental co-legislative body. It convenes national ministers from each member state, organized into configurations based on the substantive agenda under review, such as the ECOFIN Council for financial affairs or the Agricultural Council. The presidency of the Council rotates every six months among member states working in cooperative groups of three, known as a "troika" (such as the recent trio comprising Ireland, Lithuania, and Greece), preventing any individual nation from dominating the legislative agenda. Acting as a co-legislator alongside the European Parliament, the Council evaluates, amends, and approves secondary legislation. Legislative decision-making within the Council predominantly relies on Qualified Majority Voting (QMV), requiring specific population and member state thresholds to prevent legislative gridlock. Unanimity is reserved exclusively for constitutionally sensitive matters, including treaty revisions, accessions of new states, and the imposition of sanctions against a member state for treaty violations. The shift to QMV was necessitated by systemic expansion; historically, the requirement of absolute unanimity paralyzed institutional decisions, exemplified by French President Charles de Gaulle's "empty chair crisis" in the mid-s, where French representatives boycotted meetings to block Community decision-making.
The European Parliament acts as the directly elected representative chamber of Union citizens, operating under Article of the TEU as a co-legislator with the Council of Ministers over both legislative acts and the Union budget. Originally composed of delegates appointed by national parliaments, the European Parliament has been directly elected by universal suffrage every five years since . National electoral procedures are structured around proportional representation with a maximum statutory threshold of . This proportional framework accommodates the deeply divided, pluralistic nature of European society across national, linguistic, cultural, and political cleavages, mirroring consociational governance systems. Parliamentary seats are allocated to each member state under degressive proportionality based on population. The Parliament exercises democratic oversight over the executive, holding the constitutional authority to approve the President of the Commission and dismiss the College of Commissioners through a motion of censure. Voter turnout, historically depressed below , rose above the threshold in the post-Brexit elections and sustained comparable levels in .
The institutional mechanics of Union withdrawal are codified in Article of the TEU, introduced by the Treaty of Lisbon in . Prior to Lisbon, European integration was structured as an irrevocable legal process. Article established a formal exit mechanism, stipulating that any member state may decide to withdraw in accordance with its own domestic constitutional requirements. The invocation of this provision by the United Kingdom following its non-binding, consultative national referendum in initiated a complex constitutional process involving government initiative, parliamentary legislation, and prolonged bilateral exit negotiations lasting four and a half years. The extreme administrative disruption of Brexit demonstrates that for nations integrated within the Eurozone currency union, exercising Article presents logistical and systemic challenges analogous to an individual American state attempting to secede from the United States.
The Judicial Architecture: The Court of Justice of the European Union
The Court of Justice of the European Union (CJEU), headquartered in Luxembourg, operates as the supreme judicial authority governing the interpretation and uniform application of Union primary and secondary law. It is completely distinct from the European Court of Human Rights in Strasbourg. With the exception of the General Court and specialized administrative bodies like the Court of Auditors, the Union judicial structure relies directly on the domestic courts of the member states, which function as decentralized courts of ordinary Union law.
The judicial roster consists of judges—one appointed by each member state—assisted by Advocates General. The Advocates General serve an impartial, independent judicial function, delivering reasoned legal opinions on cases before the Court to assist the judges in their deliberations. While judges represent each member state, the Advocates General rotate among member state nominations through a meritocratic vetting process involving rigorous legal evaluations and technical hearings before an independent panel to assess expertise. The Court convenes in chambers of three or five judges, in a Grand Chamber of judges for complex matters of constitutional importance, or, in exceptionally rare circumstances, as a full plenary court. Decisions are formulated collegially, and the Court does not issue or publish dissenting opinions.
The cornerstone of the Court's jurisdiction is the preliminary ruling procedure. Whenever a national judge in any member state encounters a genuine ambiguity concerning the validity or interpretation of European Union treaties or secondary legislation—typically when assessing whether domestic legislation (such as an Italian or Belgian statute) conforms to superior European rules—the national court submits an interpretive question to the CJEU. Proceedings before the national court are stayed until the Court of Justice delivers its ruling. The resulting interpretation rendered by the CJEU constitutes an authoritative, binding precedent that the referring judge must enforce locally, which simultaneously establishes a uniform, binding interpretation applicable across all member states.
Constitutionalization: Material Reality versus Formal Rejection
The trajectory of European legal integration has produced a constitutional paradox: the European Union possesses the substantive attributes of a constitution without the formal nomenclature or legitimacy of a constitutional text.
In , member states attempted to formalize the integration process by drafting the Treaty establishing a Constitution for Europe. This proposed text unified the existing treaties into a single constitutional framework, incorporating state-like constitutional terminology and sovereign symbolism: an official European flag, an anthem (Beethoven's "Ode to Joy"), an official motto, formalized capitals in Brussels, Strasbourg, and Luxembourg, and the redesignation of external diplomatic missions as Union embassies and consulates. Because treaty revisions mandate unanimous ratification across all member states, several countries submitted the draft treaty to popular referendums. In , electorates in France and the Netherlands decisively rejected the constitutional treaty. In the French context, the negative vote operated largely as a domestic political plebiscite against the incumbent administration of President Jacques Chirac and prevailing economic policies.
The defeat of the treaty led to the abandonment of the formal constitution. However, the substance of the constitutional reforms was resurrected and integrated into the Treaty of Lisbon in . To secure legal ratification, all formal constitutional semantics were systematically excised: symbols, anthems, designations of Union embassies, and the term "Constitution" were eliminated. Ratifications were subsequently secured primarily through national parliamentary votes rather than risky popular referendums, with the French Parliament approving the modified text.
The contemporary European Union therefore occupies an intermediate legal status. In material terms, a constitutional order exists: an established separation of powers across supranational and intergovernmental organs, a binding bill of fundamental rights, and a supreme judicial mechanism ensuring the supremacy and direct effect of Union law. In formal terms, the constitutional framework remains incomplete: symbolic instruments were rejected, and the order operates under international treaties amended through unanimous agreement. Nonetheless, the primary law retains the quintessential formal attribute of constitutional rigidity: altering the treaties requires absolute unanimity within the Council of Ministers, followed by complex domestic ratification processes across every sovereign member state.
Questions and Discussion
Question: Who are the Advocates General at the Court of Justice, and how are they appointed?
Response: The Advocates General are permanent members of the Court of Justice who assist the judges by authoring independent, impartial, and reasoned legal opinions on cases prior to final judicial deliberation. There are Advocates General in total. Because their number is fewer than the member states, their appointment is based on a rotating system among the member states rather than a permanent national quota. When an opening occurs, a member state puts forward a candidate. The selection is governed by strict, rigorous legal assessments rather than political patronage. Nominees undergo formal evaluations, including intense interviews and hearings designed to assess advanced mastery of Union law, conducted by an independent committee established under the treaties. The final appointment requires collective institutional approval, ensuring that no member state holds dual representation within the body of Advocates General.
Question: How do the subsequent geographical minors—North America and Africa—connect with this general course, and what are the specific exam expectations?
Response: The general course concludes its shared curriculum at this junction, diverging into two separate geographical minors: North America and Africa. The North America module is instructed by Margot Boazis, a specialist in United States constitutional law, while the Africa module is directed by instructor Stacy. These geographical tracks do not administer separate, independent examinations. Instead, the substantive legal doctrines, comparative systems, and judicial cases covered in these regional courses must be woven directly into the comparative essays of the final general examination. They do not apply to the midterm examination.
Question: What is the precise scope of material covered on the midterm exam?
Response: The midterm examination comprehensively covers the coursework addressed through discussion session number six. This encompasses the comparative constitutional systems examined in class, specifically focusing on the constitutional trajectories and institutional regimes of Germany and Spain onward. French constitutional history is formally excluded from the scope of the midterm examination, as discussion sections did not cover it prior to the exam cutoff. While foundational principles drawn from the constitutional court systems of Israel and the European Union provide analytical value for comparative essays, neither system will serve as the exclusive subject of an examination prompt.
Question: What is the structural format of the examination, and what options are provided?
Response: The examination structure is identical for the midterm and final assessments: a three-hour sitting providing a choice between two distinct topics. The first option is a traditional, theoretical comparative essay prompt addressing general constitutional themes and regimes. The second option is a text commentary centered on an excerpted legal or political document, which serves as a analytical anchor to develop a broader comparative constitutional essay. Students must select and respond to only one of the two prompts.
Question: Are there strict length limitations on the exam script, and how should time be managed?
Response: The absolute maximum length permitted is six single pages. Writing beyond this limit is penalised under the principle that concision and precision supersede sheer volume ("less is more"). An effective essay is achievable within this page budget. Regarding time management, students should not write their essays immediately upon receiving the prompt. It is advisable to dedicate the first to minutes exclusively to reading the prompt carefully, deconstructing the terms of the question, analyzing any provided text, drafting a coherent thematic outline, and organizing the placement of comparative cases. Drafting a complete practice essay before copying is impossible within the three-hour time constraint; notes and structural outlines should be organized directly on rough paper before writing the final version.
Question: How should comparative examples be deployed within the essay structure?
Response: When a prompt requests comparative examples, students must mobilize at least two, and ideally three or four, distinct national constitutional systems. The essay should not discuss abstract legal systems without context; precision in mobilized examples is an explicit evaluation metric detailed in the course syllabus. This entails incorporating historical dates, regime designations (such as the French Third or Fourth Republics versus the Fifth Republic), and specific institutional mechanisms (such as the constructive vote of no confidence under the German Basic Law or the Spanish Constitution). Structurally, arguments should follow a disciplined "Idea Example" sequence: a theoretical constitutional claim is advanced, defined, and immediately substantiated using the institutional mechanics of a specific national system. Comparative examples may be integrated across the entire essay rather than forcing every individual paragraph to address all chosen countries simultaneously. The essay must demonstrate clear analytical structure using visible headings and subheadings, an introduction outlining a precise research question (problématique), and a concluding section that adopts a nuanced, balanced argumentative stance regarding the initial prompt.
Question: Can examples outside the syllabus be utilized in the essay?
Response: Incorporating external legal systems—such as a student's home country—is permitted, provided the reference remains concise and directly illustrates the analytical argument. However, extensive digressions exceeding a page are strongly discouraged because evaluators may lack the specialized expertise to verify obscure foreign constitutional nuances. The primary objective of the examination is to verify comprehension and mastery of the legal doctrines, institutional models, and historical developments covered within the course curriculum.
Question: What are the grading logistics and grading procedures across sections?
Response: The midterm examination is evaluated directly by the student's assigned seminar discussion instructor. Conversely, the final examination is entirely anonymous and double-blind; papers are redistributed internally so that no student is assessed by their own seminar instructor. However, unlike legal bar examinations (such as the Italian bar exam where exams from Bologna are marked in Naples), the scripts remain on the Reims campus and are marked collaboratively by the local teaching team according to unified standards established across institutional meetings to ensure grading parity.