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NUMERO 19 - 14/10/2015

Constitutional revision in federal, hybrid and regional models: A comparison with the European Union

 European Union remains an incertain object from an institutional point of view: it is no more a mere economic regional organization, it is not a State, many scholars try to analyze it as a special form of a federal Union or of a  federal organization. Facing the theoretical difficulties met by the doctrine in defining the object of analysis, may be we need to adopt a different way of reasoning: we do not start from definition, trying to put our object inside the theoric frame, but we move from the concrete functioning of the object. According to the Treaties of Lisbon, European Union is organized around a political engine, the Council of Europe, composed by the Head of Governments or States of the Member States, and competent to determine the main political choisies of the Union; a legislature composed by two Chambers, the European Parlament, representing the entire European people,  and the Council of Ministers, representing the Member States; an executive engine, the Commission, encharged with executive and control competences. The Acts of the legislative power and of the Commission have direct application in the Member States and they have a paramount status in relation to the National Laws. A Federal jugde, that has the monopoly of the interpretation of Treaties, binds with its decisions Member States and citizens; a Federal Bank is ruling a (partially) common currency. European Treaties establish common institutions, distributing competences among them and among them and the Member States; and, like the modern Constitutions, the Treaties are comprehensive also of a Charter of rights and liberties. If this does mean that the Treaties function like a modern federal constitution is, may be, only a rethoric question.  Of course, many points of the functioning of the European Union remain gray and do not still permit a final conclusion. Among these gray points, I will try to analyze the theme of the revision of the fondamental rules, whose evolution represents a tool for “vitality” of the constitutional systems. The aim of this paper is to compare the constitutional revision both in federal and regional countries with the constitutional revision in the European Union, which remains apparently based on mechanisms of international Law. Before the Treaty of Lisbon, there was only one revision procedure, which provided for a compulsory convocation  of an Intergovernmental Conference (ICG). Now the Treaty creates two kinds of simplified procedures in order to facilitate the revision of the Treaties, increasing both the participation of the European Parliament and of the national parliaments. Article 48describes the revision procedure. The ordinary revision procedure concerns the main amendments made to the Treaties. It requires that an Intergovernmental Conference is convened in order to adopt proposal for amendments by consensus. All the Amendments made to the Treaties shall enter into force when ratified by all Member States. Actually, the Treaty of Lisbon provides for the organization of a European Convention before the Intergovernmental Conference. The Convention has the purpose of examine proposals for amendments and then issue a recommendation for the ICG. The European Convention is composed of representatives of Heads of State, Heads of Government, representatives of the Commission and representatives of national Parliaments and European Parliament. Thus, the Treaty of Lisbon gives a more democratic value to the revision process of the Treaties. Another important element introduced by the Treaty of Lisbon is the acquisition  by the European Parliament of the right of initiative: it means that the place of the representation of the European people can now propose amendments on the same basis as the Governments of Member States and the Commission... (segue)

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