Ateliers XII. Constitutions and financial crisis
The Constitutional consequences of financial crisis and the use of emergency powers:
flexibility and emergency sources.
Ines Ciolli*
Introduction 1. An ordinary use of the state of exception 2. Flexibilization of rigid Constitutions 2.1. Emergency
instrument: changing the Constitution text as a remedy to economic emergency. 2.2 The lost of rigidity of the
Italian constitutional reform 3. A frequent use of emergency sources 3.1 A unusual (or abnormal?) emergency
source: the letter of ECB to Italy 4. The same problem of undifferentiated primary normative power in European
Union: is the legal principle in danger? The debt crisis and the breach of European Treaties 5. Conclusions
1. Introduction
During the last years we have often heard about the term crisis. This word is used in a generic
way, and we have forgotten that it derives from the Greek « κρ’ινω» that means « change», or
« moment of passage » between two different situations1.
In the XX century different moments of crisis occurred: as first the Big Crash in 1929,
followed by the crisis of the law and crisis of the State and they are all part of a long period of
juridical transformations. From XX to XXI century the role and the practice of the law had
changed and for the first time we have deeply transformations in the sources of law. We have
already experienced the naissance of new tools to support and interpreter the globalization 2
*Researcher of Constitutional law, University Sapienza, Rome.
1
J. CLAM provides a different definition of the term “crisis”, in ID., What is a crisis?, in P. F. Jaer, G. Teubner,
A. Febbrajo, The financial crisis in Constitutional perspective, Hart Publishng, 2011, p. 189 ss.
A. DI ROBILANT, Genealogies of soft law, in The American Journal of Comparative Law, vol. 54, 2006, 499554, She argues that “In the last decade sofr law, in teh form of recommandation, opinions, restatementlike codes, and soft modes of governance has come to be seen as a rrpomising tool for the armonization of
European law, providing a viable complementary or even alternative, to traditional hard law”, p. 501.
2
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such as soft law and the phenomenon of regulation: now flexibility and emergency sources
have the role to overcome the limits and the grantees that Constitutions impose. The new
trend is that weakening the soundness of the guarantees and limits provided by constitutional
lawn. It is a phenomenon internal to Constitutions papers and regarding both the legitimacy of
public institutions and the legal superiority of constitutional sources. 3 The principles of
constitutionalism are in danger: the protection of minority and parliamentary decisions and
parliamentary representation are set aside.
The impact of this tendency is impressive. In this field, we will put in evidence the effect of
the emergency on European constitutional law and on the domestic State law.
Crisis showed the limits of the contemporary constitutionalism and its way of making laws.
Crisis has unveiled the impair of EU models and of its regulation, but also the fragility of
contemporary democracies, which are no longer able to give precedence to the will of
parliament and its representatives.
From 2008 to present, EU entered in difficulty and its construction is likely to fall. We assist
of the abandon of Community method in favour of intergovernmental cooperation, in other
words, we assist to the passage from democratic method to fast decisions in name of urgency
and emergency e.g. the use of intergovernmental decisions just like statement of the Head of
the State or Government as regards bilateral loans to Greece on May 2010.4 Subsequently, it
becomes the method most used for sensitive political decisions that would not easily passed
the scrutiny neither by the European Committee nor by the European Parliament. However, it
would be too long, having a hurry, to respond to the markets 5.
The use of preferably Euro-summits, that are not formally envisaged by the Lisbon Treaty,
even if informal they provoke some questions: i) only the Euro-zone Countries can participate
Ch. BRUMMER, Soft Law and the Global Financial System: Rule Making in the 21st Century, Cambridge
Univerity Press, NY, 2012, especially p. 210-221. He claims that in the recent financial crisis soft law
cohabits with others international financial sources that is often more coercive than classical theories of
international law predict. So, binding and not binding law coexist..
3 A. SiMONCINI, Back to “flexible” Constitutions? The impact of ifnancial crisis and the decline of the
European constitutionalism, in Italian public law review, 2013, 77 ss.
4 E. CHITI, P.G. TEIXEIRA, The constitutional implications of the european responses to the financial and
public debt crisis, in Common Market Law Review, 2013, 685-686
5 I refer to different decisions from European financial Stability Facility to Fiscal compact that are missing
of shared decision-making procedures.
2
in; the European policy makers become weak, and equality of 28 European members is
seriously questioned; ii) the democracy of EU becomes a chimera: intergovernmental
cooperation is very similar to a decision made at international level where positions of the
strongest Countries prevail. One of the most recent successes of the European Union, thanks
to the Lisbon Treaty, had been to facilitate the transition of the decisions in Parliaments where
the majority represents EU citizens and not just the States.
It is clear that the transformation of constitutional law is not entirely caused by the crisis, but
this one provokes further transformations of the constitutional system. 6 There is an increase of
the use of emergency power and emergency instruments for contrasting the crisis. This
phenomenon of transformation is well known and quite radical, as crisis presents these
aspects.
What are the constitutional consequences of crisis? I try to describe in different points some
recent trends.
1. An ordinary use of state of exception
Crisis evokes a state of emergency. It implies a restriction of some constitutional guarantees
and the use of emergency instruments. Not all scholars agree that the economic crisis can be
considered a state of emergency7, but Carl Schmitt had just equated economical and financial
See the reflexion of M. RUFFERT, Public law and the economy: A comparative view from the German
perspective, I CON (2013), Vol. 11 No 4, 925-939 He claims of German economic Constitution which
becames the model for the others European democracy. As regards Italy accepting this model is hard and
difficult bacause our Constitution does not contains any choose in economic field .
A detail analysis of the effects of the economic crisis of law and of Constitutionalism is contained in E.
CHITI, P. G. TEIXEIRA, The constitutional implications of the european responses to the financial and public
debt crisis, cit., 685- 708.
7 As regards italian scholars, A. PIZZORUSSO, Emergenza (Stato di) in Enciclopedia delle Scienze sociali,
Roma, Istituto dell’Enciclopedia italiana, vol. III, pp. 448, 552, 559 and G. MARAZZITA, L’emergenza nella
teoria giuridica, ilano, iuffre, 00 , 11, 14. They believe that the economic crisis is within the
constitutional category of emergency. Contra, V. ANGIOLINI, ecessit ed emergenza nel diritto pubblico,
Padova, CEDAM, 1986, 184 e ss.and F. MODUGNO, D. NOCILLA, Problemi vecchi e nuovi sugli stati di
emergenza nell’ordinamento italiano, in AA.VV., Scritti in onore di Massimo Severo Giannini, vol. III. ilano,
iuffre, 1
, 515.
6
3
Formatted: Spanish (International
Sort)
crises with armed insurrections thereby for justifying executive recourse to emergency
power8.
Constitutional Law adapts to the performance of financial markets. It is a victim of “spread”.
Both States and European Union have suffered spread and financial markets’ decisions
without having the ability to govern them. Both EU and States are considered like private
companies: laws must comply with a criterion of efficiency rather than of representativeness.
Also UE decided to adopt special law strategies for having much flexibility required to
overcome the current economic crisis: emergency clauses are often used in this period also in
breach of European community law.
2. Flexibilization of Constitutions
The constitutional State response to the crisis consists in some constitutional amendments
above all to introduce strict budget rules (required by financial markets) or/and to introduce a
re-centralization of powers and a reallocation of functions in the central State. Italy and Spain
have modified their regionalism indirectly through the constitutional budget rule reform. 9
Constitutional amendments are a new way to weaken the rigidity of the Constitution and to
have a flexible source more adaptable to economic changes. The real reason is to make
available to the majority parties the amendments of the Constitution. Therefore it is about of a
lack of respect for minorities, no are required in Italian and Spanish to approve budget
reform, no one in Greece for accepting the European economic measures and cuts. The
participation of electoral body is avoided if it is possible and with legal tools (but there are not
legitimate instruments).
2.1. Emergency instrument: changing the Constitution text as a remedy to economic
emergency.
Xenophon Contiades studied the reaction of Constitutional papers about the recent crisis. He
analysed how the Constitutions react to the stress caused by the crisis, trough adjustments,
See W. E. SCHEUERMAN, The economic state of emergency, in 21 Cardozo L. Rev. 1869 (1999-2000), p.
1869 and G. AGAMBEN, State of exception, Chicago University Press, 2005.
9 V. RUIZ ALMENDRAL, The Spanish Legal Framework for Curbing the Public Debt and the Deficit, in
European constitutional Law review, 2013,
8
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submissions, breakdowns, stamina10. He placed Italy and Spain in a first group with Ireland,
Latvia and the United Kingdom (adjustements); Greece and Portugal are experiencing the
submission; Hungarian and Iceland are in the group of breakdown and the USA follow the
stamina behaviour.
Contiades analyses the European Countries members of EU (except the USA and Iceland) and
probably he takes into consideration the EU situation more than the phenomenon of crisis in
the world. It is acceptable to include Greece and Portugal among the Countries that have their
Constitutions subservient to the crisis: they are the most vulnerable Countries in EU. Just like
Argentina in the time of economic crisis, they are subject to the dictates of their creditors and
above all they had to give up an additional part of sovereignty more than other EU Countries.
First, the rating agencies downgraded the Greek sovereign debt. Private agencies of rating
judge and decide the fate of a State as if it were any private enterprise. Later, The European
Central Bank (ECB) and The International Monetary Fund (IMF) granted a loan subordinated
to specific policies of public spending: Troika (some experts of European commission, ECB
and IFM) made weak Greek sovereignty. Troika and rich Eurozone countries thwarted the
referendum, which could decide the opportunity of economic measures. It was an attempt to
the Greek Parliament and its competences11.
Portugal did not show the same degree of acquiescence. Since 2011 the Portuguese State
budget has been agreed with the Troika. However, the Portuguese Federal Court on April 5,
2013 with the decision 187/201312 declared some measures contained in the annual budget
(cuts on public salary and on other public insurances) in contrast with Portuguese
Constitution. The Federal tribunal claimed a violation of the principle of equality and
proportionality. It can be highlighted the new role of constitutional Courts: they are called to
defend the Constitutions not only by the domestic law violation, but also against international
or supranational attacks.
10
X. CONTIADES, Introduction: The global financial crisis and the Constitution, in ID., Constitutions in the
global financial crisis. A Comparative analysis, Ashgate, England/USA, 2013, p. 10.
for a reconstruction of the Greece case and his influence of Constitutionalism, see G. GRASSO, Il
costituzionalismo della crisi, Editoriale scientifica, Napoli, 2012, 67-74.
12 www.tribunalconstitucional.pt/acordaos/20130187.htlm
11
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The second group is the most heterogeneous, probably because adjustments can be different
and peculiar to the different legal traditions in different Countries. The word “adjustment” is
not necessarily seen in a positive way because it indicates flexibility, remembering the idea of
a lack of resistance to change when the political and constitutional system is too fragile and
not very consolidated. There are many differences between these Countries: the United
Kingdom is rich and within the EU occupies a place of its own; Ireland, Latvia and the United
Kingdom have not similar governments. Ireland and the United Kingdom are Common law
countries. The UK (and Czech Republic) did not sign the Fiscal compact. Ireland, Spain, and
Italy had the same path in reforming Constitution. The Thirtieth Amendment of the Irish
Constitution allows Ireland to ratify the Fiscal Compact avoiding inconsistency with the Irish
Constitution13. This change requires a referendum, which will have taken place on 31 May
2012. The referendum was fundamental because for the application of ESM was requested but
not received, for this reason Thomas Pringle decided to challenge the European Court of
Justice to explain the role of emergency in European and State measures 14. The ratification of
the Treaty may be stopped by a decision of the national constitutional Court, as it was
attempted in Germany. In alternative there may be a change by governments after the
signature, as the new government may be unwilling to proceed with ratification of the treaty
text as it stands. A narrow majority approved the referendum and probably Spain and Italy did
the efforts to have a two-third majority in order to prevent a decision to electoral body that
could be unfavourable to the Constitutional reform. In name of the “la raison d’état” the
electoral body has been left out once again.
Hungary and Iceland are in the group of breakdown, because they assist to a rupture of the old
constitution and they rewrite the entire text of the Constitution that now including new
economic rules. In these Countries, economic and financial crisis provoked a collapse of
institutions, political parties and their legitimacy. In Iceland, the breakdown of the
Constitution is not coincided with the collapse of constitutionalism. It was an opportunity to
rebuild through citizen participation. Iceland is a little country with low population, but it was
Thirtieth Amendment of the Constitution (Treaty on Stability, Coordination and Governance in the
Economic and Monetary Union), 27 June 2012, after the approval of referendum on 31 May 2012, by
60.3% to 39.7%.
14 PRINGLE v. Ireland, Case C-370/12.
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not assumed that citizens could participate in the discussion and the process of constitutional
revision. Hungary that was a model democracy in 1990 after the enter in UE began have
economic problems. It was too weak to take advantage of the EU economic market. Its
reaction after the collapse was different: authoritarianism and total loss of democratic
legitimacy had been the result. Crisis influenced process but the structure, the tightness and
the strength of democracies make the difference.
Indeed The USA did not amend the Constitution (stamina reaction) and came out of the crisis
with autonomous decisions that relate more to economic and political choices. It is an
exception probably due to their economic strength.
2.2 The lost of rigidity of the Italian constitutional reform
In Italy the reform to the Constitution in 2012 added rules about balancing the budget. A large
majority quickly approved the reform. There was no public debate, and the reform was
advocated by most of the Italian parties because they said that ‘Europe has asked for this’. But
is this statement correct? Did Europe force the member states to modify their Constitutions?
The Fiscal Compact does not contain legally binding obligations as regards the modification
of the Constitution, so Italy probably decided to revise its Constitution both to give a signal to
financial markets of its ability to solve the debt crisis and to allow it to fix binding rules that
are resistant to the views of the different political majorities.
In this last months other constitutional reforms are in progress, the abolition of Provinces,
asked by the ECB letter and by International Monetary Fund have benn presented in the
Parliament as well as others reforms, aimed to slim State institutions and to cut State
expenditures.
3. A frequent use of emergency sources
We assist to a frequent use of emergency sources, such as Decree-law. In truth, in Italy this
happened even before the times of crisis. The novelty is that all the other ordinary sources are
now used in so called extra ordinem situations, just like economic crisis. Also Parliamentary
bills can be used in a distorted way to manage this particularly moment of disorder, e.g. the
constitutional reform of budget rules: enhanced procedures provided by Italian Constitution
7
have been respected, but only in formal terms. The original meaning of the constitutional
amendment process has been distorted and betrayed: the long procedure provides that the
electoral body and the public opinion are informed and actively involved; for this reason it is
expected a period of reflection (at least three months away between the first and the second
approval in each of the two Chambers of Parliament), in this case, the absolute silence has
accompanied every step of this procedure and the approval. No newspaper reported about the
reform, no comments or parliamentary hearing of the experts happened, at least until final
approval15.
When a ordinary source disciplines the effects of the crisis, we have as result a kind of
normalization of the state of emergency and its extension with no time limit. The goal of these
measures is to justify the need of faster procedures. They give the impression of looking like
the markets that are rapid and ever-changing. The law has a different function and specially
constitutional law should not look like financial markets but it should limit the economic or
political power that is.
We are witnessing of a centralization of political decisions in the Government and to a lesser
involvement of Parliaments: it means less Bill of the Parliament and more decrees-law.
Another consequence of this requirement of faster procedures is a sort of “undifferentiated
primary normative power, free for limitations and procedures, and which can assume the form
of most suitable, or appropriate to individual decisions” (decree-law. Legislative decree,
etc)16.
From the last Berlusconi Government to the most recent governments Monti, Letta, Renzi, the
most important economic policy decisions have been taken by decree-law and not following
Here the text of Article 1
Italian Constitution: “Laws amending the Constitution and other
constitutional laws shall be adopted by each House after two successive debates at intervals of not less
than three months, and shall be approved by an absolute majority of the members of each House in the
second voting.
Said laws are submitted to a popular referendum when, within three months of their publication, such
request is made by one-fifth of the members of a House or five hundred thousand voters or five Regional
Councils. The law submitted to referendum shall not be promulgated if not approved by a majority of valid
votes.
A referendum shall not be held if the law has been approved in the second voting by each of the Houses by
a majority of two-thirds of the members.”.
16 A SI ONCINI, Back to….cit, p. 4.
15
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the ordinary normal parliamentary procedures that provides the approval of the economic and
financial planning document (economic and financial document, named DEF).
This document must have the consent of European Union and it should be discussed by the
parliamentary Committees and then approved by Parliament, but the timing of the discussion
are now very restricted by the same parliamentary rules. Yet, despite these short times,
Government often chooses to decide by Decree-Law 17 . This not only provides a rapid
decision, but it involves only the Government and the strict parliamentary majority. This
implies that the most important economic decisions are approved without any public opinion
involvement.
3.1 A unusual (or abnormal?) emergency source: the letter of ECB to Italy
On 5 August 2011, the day after the meeting of the Governing Council of the European
Central Bank (ECB), the President of the European Bank, Mr Trichet, and the Governor of
Central Bank of Italy, Mr Draghi, sent a letter to the Prime Minister Mr Berlusconi,
suggesting a series of economic and financial measures.18
The letter urged Italy to implement rules for the restriction of the deficit and public debt, in
order to reach a balanced budget in a short term. The reduction had to be achieved primarily
through decreasing public sector expenditure, and by a stricter control on debt and the costs of
regional and local authorities. The letter also asked for the adoption of a mechanism providing
for automatic cuts if Italy failed to contain the debt.
This letter represents an informal but effective interference in political decisions of a member
State of EU. The ECB is not a representative institution, it does not enjoy the political
responsibility, it is an important technical institution but it cannot dictate the political agenda
and the policy choices to a EU member State.
The political impact of this letter to the Italian system was strong for different reasons.
First, the letter was addressed to the Prime minister, not to the Parliament. It is a secret
communication and it was sent by the Governor of ECB and not by the European
17
i.e. Salva Italia Decree-law or the recent Decre-law of Renzi Government.
18
The letter was published in the newspaper Il Corriere della Sera on September, 11 2011. The English text are
now available in E. OLIVITO, Crisi economico finanziaria ed equilibri costituzionali. Qualche spunto a partire
dalla lettera della BCE al Governo italiano, Rivista AIC, in www.rivistaaic.it, 1/2014.
9
Field Code Changed
Formatted: Spanish (International
Sort)
Commission, the only institution that could control a member State as regard the balance
budget or spending review.
Secondly, the ECB letter is used as a binding rule for adopting some choices of political
economy19.
On November 16, 2011 the Monti Government took office, with the aim of dealing with the
ECB programs and governing the financial crisis and especially taking under control the
Italian deficit. On December 6, 2011 he had already presented the decree-law “Save Italy”
(art. 23) that contained the programs defined by IFM and ECB and European Union. The
abolishment of Province was also regulated by the “Spending review Decree-law” approved
on July 6, 2012 and Decree-law on October 2013. The reform of the retirement age of women
in the private sector that the ECB Governor asked for approving within 2012 has been made.
Scholars discussed for a long time to abrogate them, but they knew that a Constitutional
reform needed. Anyway, Monti Government decided to implement the dictates of the ECB by
Decree-law and not by constitutional amendment. Why have Monti done this? Probably for
demonstrate to the ECB and to financial and economic markets that his Government was
reliable. It could thus attract more capitals from abroad.
This need to prove to be obedient is present again with the Renzi Government and law
production is aimed at carrying out the purposes laid down by the markets and international or
supra-national institutions such as the IMF and the ECB.
Constitutional Court plays its role of guaranteeing of the Constitution and with the decision
220/2013 rejected the possibility to have a reform of Province with a Decree-law20.
Renzi Government must to lead this reform with ordinary tools, so he presented a Bill
approved on April 3 201421. Bill plans a merging of some provinces and a substitution of
others provinces with another institutions, the metropolitan cities. All questions of
19
Even the Advocacy of the State has used to confirm the legitimacy of certain public finance measures in front
of the constitutional court (see decision 7/2014 of italian Constitutional court ).
20 Constitutional court declares the inconstitutionnality The Article 23 of Decree law n. 201/2011 and the
Articles 17 and 18 of Decree-law n. 95/2012.
21 Legge n. 56/2014. See A. PIROZZOLI, La riforma delle Province: un’altalena normativa, in Osservatorio
AIC,
www.associazionedeicostituzionalisti.it/sites/default/files/rivista/articoli/allegati/La%20riforma%20de
lle%20Province%20-%20a%20cura%20di%20A.%20Pirozzoli.pdf.
10
Formatted: Italian (Italy)
Field Code Changed
Formatted: Italian (Italy)
Formatted: Italian (Italy)
constitutionality of this decree for violation of Article 133 Italian Constitution remain intact
and another attack on the constitutional rigidity has been launched.
4. The same problem of undifferentiated primary normative power in European Union: is the
legal principle in danger? The debt crisis and the breach of European Treaties
From 2008 to present most of European decisions in the field of economic crisis consisted in
special procedures often in violation or in substitution of those provided by the Treaties and
by EU regulations. After a successfully approval of Lisbon Treaty, crisis appears and shows a
lack of effective legal instrument to overcome debt. Only the article 136 TFEU can contribute
to manage the exceptional situation with the ordinary legal tools. So, we assist to an
emergency reaction. Greek situation became no longer solvable in 2010. Not European
institutions but Eurozone State member and IMF decided to intervene with a loan agreement
on May 2010. A Council decision of 10 May 2010 endorsed the loan package in the context
of the Greek deficit proceedings. A Troika (composed by legal experts of Commission, ECB
and IFM) surveyed the Political and financial implementations of a new agreement entered
into force on March 2011. Europe soon realizes that the problem is not only of Greece and its
debt or its inability to manage the national budget. For this reason, ECOFIN drawn up a
general bailout schema and passed for all the Regulation No. 407/2010 on the European
Financial Stabilization Mechanism (EFSM), based on Article 122(2) TFEU. From EFSM to
EFS and ESM loans are all conditioned and answer for the needs of speedy procedures
through sources outside of the Treaties. ESM is a Treaty that creates a intergovernmental
organization under public international law. Even when EU follows its procedures to stem the
crisis, as did by modifying the 136 TFEU, the result generates new conditions and perhaps
new transfers of sovereignty. ESM was approved by a simplified revision procedure under
Article 48(6) TEU. The Euro Member States can establish a stability mechanism to safeguard
the stability of the Euro area “The granting of any required financial assistance under the
mechanism will be made subject to strict conditionality.”(Article 136 TFEU Amendment)
The loan is subject to the adoption of certain fiscal and economic policies that are not
11
discussed by the Community institutions22. The decision of the Board is taken according to
the monetary weight of Member State: a qualified majority is formed counting the Member
States’ respective capital subscriptions 23 . The internal disputes in this strange non-EU
institution are subject to submission to the ECJ under Article 273 TFEU, a slight confusion
reigns between legal orders24. ESM is an evident rupture of the unity of EU.
Also Fiscal compact is an international treaty. The adoption of a new treaty is not needed
because the rules of economic governance at the European level could have been adopted
through enhanced cooperation within the EU or by means of a modification of Protocol No.
12 on the excessive deficit procedure. To choose an International Treaty just like Fiscal
compact had two advantages, that EU legislation could not ensure: as first a quick change,
because its adoption would have been faster than any European legislative procedure, which
must involve the Commission and European Parliament; secondly, it must be taken into
consideration a physiologic element. An international Treaty seems to be a strong solution for
reassuring financial markets.25
Fiscal compact shall be embedded in the national legal system of each European member
State, at the statutory level or higher, within 12 months after the Treaty entered into force. The
European Commission must monitor and evaluate the time and the manner of this procedure.
In the case in which the State implementation of the law is non-compliant after the deadline
the Court of Justice can be asked to judge the case. Also Court of Justice can impose a
penalty of up to 0.1% of the GDP of member State. It is interesting to note that the conflict
become from political to jurisdictional through the intervention of Court of Justice. It is the
same trend with the insert in the national Constitution of the rule of Fiscal compact: the
The decisions are taken by the Boards of Governor of ESM (composed by the Miniters of Finances of euro
area members State, the Commissiones for Economic and Monetary Affairs and the President of the ECB
22
holding observer status.
Other decisions are taken by unanimity.
Ch. OHLER, The European Stability Mechanism: The long road to financial stability in the Euro area, 54
German Yearbook of International Law (2011), p. 47-74.,
23
24
B. DE WITTE, Treaty Games - Law as Instrument and as Constraint in the Euro Crisis Policy, in F. ALLEN, E.
CARLETTI, S. SIMONELLI (Eds.), Governance in the Eurozone – Integration or Disintegration, FIC Press
Wharton Financial Institutions Center, Philadelphia, 2012, 153, in www.astrid-online.it/Riformade/GOVERNANCE/Studi--ric/CEPR_Governance-for-the-Eurozone_policy-report-nov2011.pdf#page=173.
25
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violation of the constitutional rules becomes a task of the Constitutional Court and the conflict
is no longer mediated politically. Here another point of change of constitutionalism: the area
of political bargaining and therefore the space of legislation and of Parliaments narrows and
that of the Courts widens. It is a trend that Carl Schmitt had expected, the neutralization of
power and political accountability.
5. Conclusions
It cannot be denied that many constitutional transformations, in particularly the modifications
of the text of the Constitutions, were common since 2008. Only the collapse of communism
had brought the same constitutional transformations in the nineteenth century 26 . The Big
Crash of 1929 was followed by changes in law, but the revision of Constitutions is a recent
tendency and in 1929 Constitutions were not so strong and so fundamental27. In Iceland the
constitutional reform occurred on 2008, but the significance of this constitutional reform
dated back to many years before, because the dysfunctions of the Constitution were
numerous. Even France made a constitutional amendment that tends to simplify the budget
and to give space to the control of parliament and to the power of the Court of Auditors.
Germany made a constitutional amendment regarding the control of budget even if it was due
to internal question referred to the relationship between Lander and central state. But we have
to wait until 2012 and the approval of fiscal compact to see constitutional amendments related
to the crisis and to the economy questions. Spain and Italy did an important reform for
adopting fiscal measures of control of budget. While the reform in France, Iceland Germany
are focused on the technical procedures to arrange a better system of control, the impression is
that in weak States, just like Italy, Spain, Croatia, the reform of the text of constitutional
papers is a sort of demonstration of their attitude to bend to financial and economic markets..
The relationship between State member and EU are marked by the different (economic)
power (economic) of the States. There is no more space for the principle of one person, one
26
As claimed by Th GYLFASON, Constitutions: financial crisis can lead to change, in CHALLENGE, 2012,
107 and ss.
27
X. CONTIADES, Introduction: The global financial crisis and the Constitution, cit.,
13
vote and especially it narrows the space for political and constitutional pluralism. The other
question is the importance of popular sovereignty as essential element of the democracy. This
sovereignty risks to became a luxury only for rich democracy: it is good for Germany but not
for Greece where a referendum for deciding economic policies was not allowed or for Spain
and Italy which the large majorities accepted the Constitutional reforms for avoiding
constitutional referenda28.
Flexibility, lost of legitimacy and creation of new sources demonstrate that constitutionalism
had deeply changed. Crisis has affected this, but the transformation is far from. Probably it is
not possible to come back, but it must concentrate the efforts to recover a minimum of
guarantees to overcome this period of transition and create a new tools for a new
constitutionalism.
28
See L. VINX, The incoherence of strong popular sovereignty, I•CON (2013), Vol. 11 No. 1, 101–124 that
remaks the importance of popular and parlamentary democracy affirmed by the German Federal Constitutional
Court’s starting from the decision on the Treaty of Lisbon.
14