Europeanization, Constitutional Review and Consensus Politics in the Low Countries

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