Europeanization, Constitutional Review and Consensus Politics in the Low Countries

in: Hans Vollaard, Jan Beyers and Patrick Dumont (eds.), European Integration in the Low Countries. Routledge 2014, p. 92-113

Posted: 6 Mar 2014 Last revised: 28 Aug 2014

See all articles by Patricia Popelier

Patricia Popelier

University of Antwerp

Wim J. M. Voermans

Leiden University - Leiden Law School

Date Written: March 3, 2014

Abstract

According to Lijphart (Patterns of Democracy 1999) judicial review is a defining feature of a consensus democracy as opposed to a majoritan democracy. Judicial review characterizes non-majoritarian federal states, where courts resolve conflicts of power between the federal and regional level, but is not exclusive to federations. Although judicial review reinforces the non-majoritarian features of consensus democracies, the question remains why parliaments in unitary states would confer to a court the power to strike down adopted legislation. Exogenous factors, like Europeanization, may provide a plausible answer for that. Recent discussions in the Netherlands to partially lift the ban on constitutional review are interesting in this respect. This contribution concentrates on how European integration has impacted the role of judicial review in three comparable consensus democracies, notably Belgium. Luxembourg and the Netherlands. The overall conclusion of our analysis is that judicial review of parliamentary acts is not a distinctive feature of consensus democracies. European integration, however, has stimulated the judicial review of domestic legislation, which has taken place independently of domestic consociational considerations. In some cases this has eroded the inviolability of domestic laws, for instance, in the Netherlands where the constitution formally opposes constitutional review. Where constitutional review exists, such as in Belgium, the EU may, on the one hand, constrain the exclusive position of the Constitutional Court to deal with constitutional adjudication suspected to threaten delicate consociational balances. On the other hand, Europeanization helps the Court to depoliticize the outcomes of the litigation, although depoliticization is not guaranteed as some examples in Belgium have demonstrated.

Keywords: constitutional review, judicial review, consensus democracy, consociationalist democracy, EU, Europeanization, European integration, consensus politics, federal system, unitary system, jurisdiction, litigation

JEL Classification: K1, K10, D72

Suggested Citation

Popelier, Patricia and Voermans, Wim, Europeanization, Constitutional Review and Consensus Politics in the Low Countries (March 3, 2014). in: Hans Vollaard, Jan Beyers and Patrick Dumont (eds.), European Integration in the Low Countries. Routledge 2014, p. 92-113, Available at SSRN: https://ssrn.com/abstract=2403823 or http://dx.doi.org/10.2139/ssrn.2403823

Patricia Popelier

University of Antwerp ( email )

Prinsstraat 13
Antwerp, Antwerp 2000
Belgium

Wim Voermans (Contact Author)

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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