Unionsmedlemskapet som grundlagsproblem

Abstract

EU membership as a constitutional issue

This article deals with the allez and retour provisions (Claes 2005: 84 f) of the Swedish constitution in relation to EU membership. What are the rules governing the transfer of sovereignty to the Union? And what are the provisions for assessing the constitutionality of the incoming tide of Union law into the domestic legal order? I have three objects in this essay. First, to describe how these two groups of constitutional rules were actually modified in the 2010 revision of the 1974 Instrument of Government. I find that neither was changed in any material way. Second, to try to explain the apparent reluctance of the parties involved to clarify the constitutional implications of EU membership. I find that this reluctance is rooted in a belief that European integration is not furthered if the rules contained in the allez and retour provisions are made stricter and more precise. Third, to confront a question conspicuously omitted by the parties in their revision: namely, by what criterion should the allez and retour provisions be intertwined, if and optimum of bi-level constitutionalism is to be achieved? I argue that, in the end, the underlying issue is whether Swedish citizens want to see the principle of free movement applied as widely as possible. Do they want this principle to be applied across the board? Or would they prefer instead to restrict its application to the case of capital and goods, thus leaving them free to structure the labour market and welfare state as they themselves see fit?