Rediscovering Europe in the Netherlands - St Antony's College ...

ediscovering europe in the netherlands
system, whereas in reality the activities of the eu in that area are limited to
cross-border problems. A constitutional safeguard would offer a degree of
certainty on this point and thus help to quell these fears. Many uncertainties
about European co-operation are the result of the dynamic nature of
that co-operation. It is precisely the stable character of a Constitution that
can offer an appropriate response to this.
Constitutional safeguards as an accountability mechanism
Dutch courts are not allowed to review the constitutionality of legislation
(Article 120 of the Constitution). In this respect, the situation in the
Netherlands also differs from that of many of the neighbouring countries,
which often have separate constitutional courts charged with reviewing
the constitutionality of the exercise of public authority. The German
Bundesverfassungsgericht mentioned above and the Constitutional Court
in Belgium, are good examples, while Austria, Italy, Spain, Portugal and
many of the countries that joined the eu in 2004 have established special
Constitutional courts. Meanwhile, the National Convention has called for
the introduction of a Constitutional Court in the Netherlands. 5
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The experiences of other countries indicate that constitutional courts can
also play a legitimising role in the context of European co-operation. By
subjecting the ratification of European treaties to constitutional review,
entering into new relations at the European level would not just be subject
to Parliamentary review , but also by an independent judicial authority.
The practicalities of the rulings by the German Bundesverfassungsgericht
on the ratification of basic treaties are well known, also to the general
public (with the Maastricht Urteil being the most renowned). In this sense,
a Constitutional Court may also offer an alternative to organising referenda
during the ratification phase.
Secondly, specific European legislation could be reviewed indirectly on
the basis of the implementing legislation. The Constitutional Court in
Germany, for example, reviewed the introduction of the euro and the
European arrest warrant. In the latter case, the German court decided that
the margin of appreciation left by the European framework decision had
been incorrectly interpreted. This isolated the fact that responsibility for
the constitutional infringement in this case lay with national politicians,
and could not be attributed to the underlying European decision. Constitutional
review thus makes it more difficult for policy makers to use the
eu as a scapegoat for their own policy failings. Constitutional review can
provide an incentive for Parliament not to allow itself to be dominated by
the government in eu matters, and to take its own responsibilities more
seriously. This would bolster ex post accountability (the possibility that the