The Signs of Fissures Appear: Infringement Process against the Slovak Constitutional Amendment as a Symptom of the Weakness of European Constitutional Pluralism

https://doi.org/10.63189/RRAL2586

On 11 November, the European Commission formally launched an infringement process against Slovakia.^[1] The guardian of the treaties sent a letter of formal notice, to which Slovakia must respond within the next few days. The accusations made by the Commission are serious: Slovakia's latest constitutional amendment undermines the very foundations of EU law and breaches the principles of autonomy, primacy, effectiveness and uniform application. According to the European Commission, which raised concerns earlier in the adoption process, the amendments allow Slovak authorities, including the courts, to assess the extent to which EU law, including rulings of the Court of Justice, may apply. However, a Member State cannot circumvent the need to comply with fundamental principles, even when amending its national constitution, which is an act of national sovereignty par excellence.

One might ask what Slovakia has done to be the target of such serious accusations.

On 25 September, Slovakia’s National Council swiftly approved constitutional amendments that took effect on 1 November, just ten days before the Commission sent the aforementioned letter. According to the constitutional procedure,^[2] approval by three-fifths of all parliamentary members is required, meaning 90 out of 150. Exactly 90 members voted in favour of the text: 78 deputies from Fico’s coalition; 10 members from the 12 deputies of the Christian Democratic Movement (KDH) as two of them, including Frontisek Miklosko decided not to support the text; and two MPs from the former OĽaNO, now called the Slovakia Movement. So, Robert Fico managed to accomplish his constitutional project, which is no mean feat in Slovakia. The Slovak Constitution has only been amended 23 times, which shows how difficult it is to find a three-fifths majority among a polarised political elite. The prime minister, who introduced the euro to Slovakia seventeen years ago, presented his constitutional amendment project in January. The formal proposal was sent to the National Council in April and was not subject to accelerated proceedings. The first reading took place on 9 April; the second reading took place on 17 June; and after some non-substantial amendments were considered, the final vote was cast on 25 September.

Only a couple of days before the vote, the Venice Commission adopted an urgent opinion^[3] that emphasised the need for transparency, accountability, inclusivity and democracy in the proceedings, as well as a meaningful opportunity for public input, particularly for controversial and complex legislation concerning international obligations. The insufficient involvement of civil society and vulnerable groups was also highlighted. The opinion also addressed some substantial concerns: the weakening of human rights protection and international obligations; the substantial risk of legal uncertainty due to opposition to the Union’s law, which is based on the ‘vague and broad’ concept of national identity, reflecting ethical and cultural values with an unpredictable interpretation; the restrictive stance on adoption, which is not against European standards, however, children’s best interests should be prioritised, and discrimination cannot be permitted; and finally, the strict binary definition of sexes, which could lead to discrimination.

But what has Slovakia done to incur such wrath? What substantial changes were made to the Constitution?

Firstly, it should be noted that Slovakia has a constitution that is very EU-friendly. Article 7 not only allows entry into a Union of sovereign states by referendum, but also contains specific provisions on the transfer of powers (the transfer of part of the powers exercised by international treaties that have been ratified and promulgated), as well as provisions on the precedence of international treaties and their direct application, with the exception of precedence over the constitution and constitutional laws. Secondly, the new amendment has only added that Slovakia retains sovereignty over matters of national identity, which are formed by fundamental cultural and ethical issues concerning the protection of life, human dignity, private and family life, marriage, parenthood, family life, public morality, personal status, culture, and language. Finally, the amendment confirms that there is no constitutional possibility of consenting to the transfer of powers relating to national identity. As has been said, this is not an exit, but merely an escape. Taken together, these constitutional provisions even effectively bind Slovakia to respecting the effectiveness and primacy of EU law. However, within a very narrow field expressly defined by the new provisions, Slovakia requests respect for its own values.

The main goal of the amendment is clearly to protect these values. The other new provisions concern equality of men and women in remuneration; the prohibition of agreements relating to surrogacy; the definition of parents as mothers (women) and fathers (men); adoption by spouses only, with some reasonable exceptions; and the sole recognition of the sexes of male and female as biologically determined. If there are new provisions regarding the relationship between the national legal system and EU law, it is probably because the last ten years^[4] have shown that EU law intervenes, even though EU competence is not evident in these controversial societal issues. In other words, other than the risk arising from the expansion of competencies of the European Union to sensitive fields, especially in the Central European region, there is no risk of legal uncertainty or opposition between the national constitution and the EU law as interpreted by the Court of Justice.

The first lesson of the story is that, even without having an important or general impact on the founding principles of EU law, national provisions — especially constitutional ones, and particularly those of Central and Eastern European Member States — will always be the target of a massive legal attack by Europe when they try to protect the generally recognised conservative values of their national societies. Even a pro-European political leader such as Robert Fico, who has proven his commitment to European integration throughout his long political career, cannot escape the institutional reaction when he tries to fight for those values. However, it should be possible to be pro-European while also being willing to protect national values in certain areas such as life, human dignity, private and family life, marriage, parenthood, family, morality, culture and language. The second lesson concerns the coordinated intervention of the organs of the Council of Europe and the European Union which often cover themselves with a so-called civil society representing 'European values'. The Venice Commission highlights the small number of comments received during the amendment's preparation as proof of its non-transparent adoption method. For the Commission for Democracy Through Law, democracy is more about inclusiveness than about the majority. The European Commission and the Court of Justice will then refer to the Venice Commission’s opinion to emphasise the illegitimate nature of a constitutional amendment that would attack the foundations of EU law.

There is no legal argument for defence against such accusations then.

However, the main issue that will be addressed and the most interesting aspect that will emerge in this infringement procedure is not the judgement on the case, which will undoubtedly condemn Slovakia — it will not be the first time that a Central European Member State has been sanctioned due to a constitutional amendment — but rather the fact that the fissures in so-called constitutional pluralism will finally become as apparent as they can be in relation to those conservative values that are so important to the majority of Central European nations. There are no more techniques or methods to hide them. Moreover, it is unclear whether help preserving the founding principles of autonomy, primacy, effectiveness and the uniform application of EU law. One would think that those European reactions – which are more like actions, given that the reaction is the constitutional amendment designed to clearly and openly protect the aforementioned values attacked by Europe – should stop, otherwise they risk being counterproductive and the fissures will trigger seizures.

^[1] INF(2025)2208.

^[2] Article 88 of Slovak Constitution.

^[3] CDL-PI(2025)11 Slovak Republic Urgent Opinion ont he draft amendments, adopted on 23 September 2025.

^[4] The landmark judgement of the Court of Justice in the so-called Coman case was delivered in 2018, however, the general tendency manifested itself even before.