Unwritten rules shaping the EU's ‘form of government’: A study of conventions and their constitutional implications
| Published date | 01 April 2023 |
| DOI | http://doi.org/10.1177/1023263X231183705 |
| Author | Ylenia M. Citino |
| Date | 01 April 2023 |
Unwritten rules shaping the
EU’s‘form of government’:A
study of conventions and their
constitutional implications
Ylenia M. Citino*
Abstract
The debate on the conventions of the constitution has led to a variety of tools for analysing insti-
tutional practices in national governments. Few attempts have been made to identify relevant pol-
itical rules in the EU’s‘form of government’. This paper argues the applicability of the conventional
theory in understanding the EU’s most recent constitutional developments by comparing the com-
mon law and continental understandings of conventions. It highlights the different features
attached to conventions in various national experiences and offers a fresh view of them to take
the most out of this notion, long forlorn in EU studies. Using three practical experiences (trilo-
gues, parliamentary hearings for Commissioners-designate and the Spitzenkandidaten practice),
the paper shows how unwritten rules can shape the EU’s political or material constitution up
to the point of bringing concrete informal changes without any formal Treaty amendment.
Keywords
Conventions of the constitution, EU unwritten rules, informal constitutional change, institutional
practice, trilogues, parliamentary hearings, Spitzenkandidaten.
1. Introduction
The neglect of constitutional conventions by the EU constitutional scholarship is a critical issue that
requires attention. This is especially important when considering the EU’s evolution from a simple
intergovernmental organization, founded on legal agreements between Member States, to a more
constitutionalized entity.
1
*
Department of Political Science, Luiss Guido Carli University, Roma, Italy
Corresponding author:
Ylenia Maria Citino, Department of Political Science, Luiss Guido Carli University, Viale Romania, 34, Rome, Italy.
Email: ycitino@luiss.it
1. See J.H.H. Weiler, ‘The Reformation of European Constitutionalism’,35Journal of Common Market Studies (1997),
p. 97 and J.H.H. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor’and Other Essays on
European Integration (Cambridge University Press, 1999), p. 224.
Article
Maastricht Journal of European and
Comparative Law
2023, Vol. 30(2) 107–131
© The Author(s) 2023
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DOI: 10.1177/1023263X231183705
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This study aims to remedy such disregard by highlighting the importance of conventions and
advocating for their inclusion in academic discourse. Conventions can offer valuable insights
into institutional power dynamics, the interpretation of legal rules, and the evolution of constitu-
tional architecture despite the current standstill in Treaty amendment.
Although conventions are not typically regarded as legal categories, they have frequently been
addressed in legal discussions by lawyers who interpret the intent behind constitutional provisions
established by political and institutional actors. However, conventions are more than mere interpret-
ive tools: they can operate on a written norm by amending, reducing or expanding its scope; they
can create new norms in a space which was prior devoid of any written rule; sometimes, they can
even render constitutional norms a dead letter (by nullification or desuetude), while leaving their
words unchanged, in a way that provokes doctrinal dissensus. Briefly, conventions are essential
devices for understanding the working of the forms of government.
As the idea of the EU as a distinctive and unique ‘form of government’gains traction, evaluating
the feasibility of incorporating the most shared elements of constitutional state culture into the EU
framework is necessary. To begin this process, the aptitude of the concept of constitutional conven-
tions to serve interpretative purposes at the EU level needs to be assessed.
In a recent essay, Bruno de Witte advocates for a rethinking of the classic positivist approach to
legal doctrine by incorporating the concept of ‘law-in-context’.
2
While acknowledging the contin-
ued relevance of the distinction between what is considered law and what is not, de Witte argues
that it must be complemented by an analysis of institutional practices. De Witte’s argument
builds on the existing idea that facts and unwritten rules are fundamental to legal theory and to
the understanding of EU law. However, he brings a fresh perspective to the discussion by highlight-
ing recent developments specifically in EU law, which are capable of expanding the meaning of
Treaty provisions.
Following his suggestion, we will delve deeper into implicit rules and ‘institutional practices’,
both of which find a limitation in the ‘unwritten institutional principles’.
3
Although they hold sig-
nificant influence, these rules are often overlooked because they subsist in a legal grey area. As a
result, neither lawyers nor political scientists give them the attention they deserve. This paper
seeks to reframe the theory of unwritten rules by piecing together the most significant insights
from the debate on constitutional conventions and applying them to the European institutional
context.
4
However, it is important to note that this study will not be able to provide an
all-encompassing prospectus of the conventions that exist (or may exist) at the EU level. Instead,
it will zoom in on a few key examples to highlight their central function.
By employing a methodological approach that transcends positivist paradigms and incorporates
empirical factors, the paper also delves into the value of the notion of ‘form of government’as a
2. B. de Witte, ‘Legal Methods for the Study of EU Institutional Practice’,18European Constitutional Law Review (2022),
p. 654 explaining that ‘what law-in-context adds is the possibility to rely on the findings of other disciplines (or, in its
more ambitious form, the possibility to engage in interdisciplinary research oneself) in order to offera better and richer
understanding of legal questions’. Law-in-context should be plugged-in into law-in-the-books.
3. B. de Witte, ‘Constitutional Aspects of European Union Membership in the Original Six Member States: Model
Solutions for the Applicant Countries?’, in A.E. Kellermann, J.W. de Zwaan and J. Czuczai (eds), EU Enlargement
(TMC Asser Press, 2001), p. 10.
4. See N. Walker, ‘Legal and Constitutional Theory of the European Union’, in P. Craig and G. de Búrca (eds), The
Evolution of EU Law (Oxford University Press, 2021), p. 93, who stresses that the discussion of EU constitutional
theory is an under-cultivated topic, probably due to ‘the persistence of the statist legacy with its default “methodological
nationalism”’.
108 Maastricht Journal of European and Comparative Law 30(2)
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