Jean Monnet Center at NYU School of Law


6. Regional Rights

1. In addition to the ideas concerning a second or third chamber of the European Parliament discussed above, one might note a suggestion put forward by The Economist (Draft Constitution for Europe, 28 October - 3 November 2000, pp. 17-22). This would establish a representative body of members of national parliaments to act not as a regular house of the legislature but as a kind of constitutional council. This body's function would be to control legislation by Council and Parliament according to the criteria of subsidiarity and proportionality. These criteria being matters as much for political as for strictly legal judgement, a politically constructed constitutional council of this kind would, it is said, be a better guardian of the overall constitutional framework than a Court such as the ECJ.

2. There would, however, be a serious risk of conflict of jurisdictions between such a body and the European Court of Justice. Nor is it clear that a party-political body of this kind would function as anything other than a third house of a legislature comprising Council and Parliament with the Commission continuing to play the part of the executive branch of community government.

3. It is true, however, that there can be risks of conflict between a State's Constitution as interpreted by its highest constitutional court, and the requirements of the Union's 'constitutional charter' as this is construed by the European Court of Justice. The existing constitutional pluralism that characterises the Union is one of its highly desirable features. Therefore there is need for some form of special constitutional court or tribunal of conflicts to deal with problems of this kind, and to secure that conflicts concerning the proper interpretation of competences at all legislative levels within the Union can be resolved satisfactorily. A special tribunal comprising judges from a panel representing both the ECJ and judges from highest constitutional courts of member states would be much more appropriate to a task of this kind than would a Council drawn from parliamentarians with the party affiliations proper to elected representatives.

4. The governments and parliaments of constitutional regions should, for obvious reasons, have an independent right of recourse to such a constitutional court. In the meantime (and in any event) it would also be desirable for constitutional regions to have access directly to the European Court of Justice in case of controversies concerning the lawfulness or validity of governmental or legislative action at the level of the internal nation.




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