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Rise of constitutional oversight by the EU puts pressure on autonomy of Member States

Published: 05th May 2021 Last updated: 06th May 2021

The European Union is becoming more and more involved with the organisation of public authority in the Member States, to the extent that this can be referred to as the rise of constitutional oversight by the EU. In the political and legal battle surrounding the values of the Union, democratically-mandated national decision-making clashes with the authority of EU institutions under the rule of law. This was legal scholar Maarten Stremler’s conclusion in his PhD thesis which he defended on 30 April 2021 at Tilburg University.

Stremler researched how the European Union deals with Member States that are said to be violating or at risk of violating the fundamental values of the Union, as outlined in Article 2 of the Treaty on European Union (TEU). These values include human dignity, freedom, democracy, equality, the rule of law and human rights. In recent years, these values, and the rule of law in particular, have become the topic of serious political debate and legal action, particularly as a result of controversial developments in Romania, Hungary and Poland. It has been claimed that the governments in these countries are working to undermine the domestic separation of powers including the independence of the judiciary.

Stremler analysed how the most relevant EU institutions in this regard – the European Commission, the European Parliament, the Council of the EU and the Court of Justice of the EU – have responded to these developments.

Constitutional oversight

The EU is becoming more and more involved with the organisation of public authority in the Member States, to the extent that this can be referred to as the rise of constitutional oversight by the EU, concludes Stremler. The finding by the European Commission and the European Parliament of constitutional backsliding in a number of Member States has put in motion a process that forces Member States to increasingly justify their actions on a European level, both politically and legally, in regard to measures that were previously considered domestic affairs.

The European Commission is increasingly prepared to take to the Court of Justice Member States that implement national measures that the Commission believes violate the rule of law. Meanwhile, the Court is expanding the scope of Union law and placing more specific demands on the Member States. The Council is divided on the matter, with Member States in Central and Eastern Europe in particular expressing little need to judge each other’s constitutional credentials.

Battle continues

In Stremler’s view, the rise of constitutional oversight by the EU puts pressure on the constitutional autonomy of Member States, that is, their self-determination in constitutional affairs. This is because the EU has hardly any explicit powers in this regard. Although the Treaties mention common constitutional values, the meaning of these values is not specified for the most part.

As such, constitutional oversight is not simply the enforcement of pre-given and well-established legal standards. Instead it is a process in which EU institutions construct constitutional norms for the Member States and then attempt to enforce compliance with these norms. In this context, democratically-mandated national decision-making clashes with the authority under the rule of law of supranational experts, according to Stremler. The stakes of this conflict, the outcome of which continues to be largely undetermined, are nothing less than the direction and identity of the European project.

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