Portugal: The Impact of European Integration and the Economic Crisis on the Identity of the Constitution

Abstract

The Portuguese Constitution of 1976 shares some of the main features of the constitutions adopted after the fall of an authoritarian regime, such as detailed rules and enforceability in court. The constitutional culture is mostly influenced by continental constitutional traditions, especially the French constitutional experience as regards the organisation of the state, and Germany in relation to the rule of law and fundamental rights. Rights from the first to the fourth generation are protected in some sixty articles, with detailed sub-clauses, and with a particularly strong social solidarity dimension and social rights. In the jurisprudence of the Constitutional Court, measures have often been annulled on the grounds of violation of the principles of equality, proportionality and the protection of legitimate expectations. This approach was enhanced in relation to the drastic austerity measures resulting from the European Union and IMF bailout programmes. The so-called austerity case law has been praised by some commentators, but criticised by others who have accused the Court of insularity, inconsistency and of engaging in judicial activism. Other areas where transnational law has presented challenges include retroactive effect of EU regulations, publication of IMF decisions and international extraditions. The European Arrest Warrant and Data Retention Directive did not raise constitutional issues. Amendments of the Constitution with a view to EU and international co-operation are extensive. These include removal of several programmatic provisions regarding the social orientation.

Keywords: The Constitution of Portugal, Constitutional Amendments Regarding European and International Integration, the Portuguese Constitutional Court, Fundamental Rights and the Rule of Law, European Union and IMF Austerity Programmes

JEL Classification: K10, K33