Prospective Constitutional Changes in Kosovo Emanating from the EU Pre-Accession Process

Abstract

Kosovo Constitution is compatible with EU law. Integration in the European Union is one of the key objectives of Kosovo's constitutional preamble and the paper will discuss the prospective constitutional amendments that will occur in Kosovo in anticipation of accession to the European Union. The author's position is that a great part of constitutional non-compliance with EU law can be solved through constitutional interpretation (eg the partial transfer of sovereignty), while other issues will require parliamentary intervention through constitutional amendments, a process which does not always run without difficulty in Kosovo's democracy. In this paper, it is argued that the Kosovo Constitution will require a small package of constitutional amendments during the pre-accession process. Constitutional amendments will be required to ensure the precedence of EU law, but also to ensure that the right to vote and to stand as a candidate in municipal elections by citizens of the EU is guaranteed. Further, the article analyses the kind of impact the EU integration process will have on other specific constitutional issues in Kosovo, such as freedom of movement and the surrender of nationals to other Member States, and what constitutional choices there are to avoid any contradiction between the Constitution and EU law. The study takes into account constitutional adaptations in several Central and Southeast European countries on their path towards EU integration, which can serve as guidelines for the decisionmaking authorities in Kosovo to identify constitutional gaps and flaws in the course of the EU pre-accession process.

European Integration of Kosovo: Analysis of the Kosova Constitutional Provisions that Require Harmonization with EU Law

“…Only the Constitution of the Netherlands was amended to include a transfer of powers provision in 1953 because the constitutional legislature was of the opinion that there would be frequent recourse to this type of transfer in the future. 35 Seen from the distant experience of not only the founding Member States but also from those that have recently joined the EU, it is clear that there is no common constitutional approach to the way in which the primacy of EU law is guaranteed. Some countries do not mention it at all in their constitutions (Netherlands and Spain), while some have very detailed provisions (Austria, Portugal).…”