In its constitutional role, the Court rules on the respective powers of the Communities and of the Member States, on those of the Communities in relation to other forms of co-operation in the framework of the Union and, generally, deter- mines the scope of the provisions of the Treaties whose observance it is its duty to ensure. It ensures that the delimitation of pow ers between the institutions is safe- guarded, thereby helping to maintain the institutional balance. It examines whether fundamental rights have been observed by the institutions, and by the Member States when their actions fall within the scope of Community law. It rules on the relationship between Community law and national law and on the reciprocal obligations between the Member States and the Community institutions. Finally, it
39 In the early days, when it was not yet common to speak of the Treaties in constitutional terms, the Bundesverfassungsgerichthad no problem holding that‘The EEC Treaty to a cer- tain extent constitutes the Constitution of the Community’, in Bundesverfassungsgericht, deci- sion of 18 October 1967, EEC Regulations constitutionality case, 22 BverfGE 293, English version in Oppenheimer, The Cases, 410, at 413. This constitutional language has not been used by the same court in later times.
40 JHH Weiler, ‘The European Court of Justice: Beyond “Beyond Doctrine” or the Legitimacy Crisis of European Constitutionalism’, in The European Court and National Courts. Doctrine and Jurisprudence (Oxford, Hart Publishing, 1998) 365, at 368.
41 ‘The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed’, Art. 220 EC (old Art. 164 of the EC Treaty).
may be called upon to judge whether international commitments envisaged by the Communities are compatible with the Treaties.
But it is mostly in legal writing about the Court and its case law that the idea of the Court as a constitutional court has developed,42not least in the writings of members of the Court themselves.43The transformation of the Court of Justice into a constitutional court goes hand in hand with the constitutionalisation of Europe.
13.2.1.1. The Making of a Constitution for Europe44
There is nowadays a wide array of scholarly writing taking recourse to constitutional language to describe the Union and Communities. This
42 For instance J Rinze, ‘The Role of the European Court of Justice as a Federal Constitutional Court’, PL, 1993, 426; R Dehousse, La Cour de justice des Communautés européennes, (Paris, Montchrestien, 1994); also published in English, R Dehousse, The European Court of Justice, (New York, St Martin’s Press, 1998); M Poiares Maduro, We, The Court. The European Court of Justice and the European Economic Constitution, (Oxford, Hart Publishing, 1998).
43 Many members of the Court of Justice have contributed to divulging the message. See amongst many others, P Pescatore, ‘La Cour en tant que juridiction fédérale et constitu- tionnelle’, in Zehh Jahre Rechtsprechuhg des EuGH, Kửlner Schriften zum Europarecht, Band 1, 1965, 520; AM Donner, ‘The Constitutional Powers of the Court of Justice of the European Communities’, CML Rev, 1974, 127; AM Donner, ‘The Court of Justice as a Constitutional Court of the Communities’, in Tussen het echte en het gemaakte, 1986, 343;
GF Mancini, ‘The Making of a Constitution for Europe’, CML Rev, 1989, 595; J Mischo,
‘Un róle nouveau pour la Cour de justice?’, RMC, 1990, 681; GF Mancini and DT Keeling,
‘From CILFIT to ERT: the Constitutional Challenge facing the European Court’, 11 YBEL, 1991, 1, reprinted in CF Mancini, Democracy and Constitutionalism in the European Union.
Collected Essays, (Oxford, Hart Publishing, 2000), 17; F Jacobs, ‘Is the Court of Justice of the European Communities a Constitutional Court?’, in D Curtin and D O’Keeffe (eds), Constitutional Adjudication in the European Community and National law, Essays for the Hon Mr Justice TF O’Higgins, (Dublin, Butterworth Ltd 1992) 25; O Due, ‘A Constitutional Court for the European Communities’, above, 2; GC Rodriguez Iglesias, ‘Der Gerichtshof der Europọischen Gemeinschaften als Verfassungsgericht, EuR, 1992, 225; G Slynn of Hadley, ‘What is a European Community Judge’, 52 CLJ, 1993, 234; M Zuleeg, ‘Die Verfassung der Europọischen Gemeinschaft in der Rechtsprechung des EuGH, Betriebs- Berater, 1994, 581; W van Gerven, ‘Toward a Coherent Constitutional System within the European Union’, EPL, 1996, 81; FG Jacobs, ‘The Community Legal Order––A Constitutional Order? A Perspective from the European Court of Justice’, in J-D Mouton and Th Stein (eds), Towards a New Constitution for the European Uhion? The Intergovernmental Conference 1996 (Kửln, 1997) 31.
44 Beside the contributions mentioned above, publications include E Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’, Am J Int L, 1981, 1; JHH Weiler, ‘The Transformation of Europe, Yale LJ, 1991, 2403; J Temple Lang, ‘The Development of European Community Constitutional Law’, The International Lawyer, 1991, 455; the constitutionalization of Community law is also discussed in the broader analysis by J Gerkrath, L’émergence d’un droit constitutionnel pour l’Europe (Brussels, Editions de I’Université de Bruxelles, 1997).
Snyder’s ‘Constitutional Law of the European Union’ takes a different approach, applying constitutional language to the EU rather than focussing on the EC as most authors do, see F Snyder, ‘Constitutional Law of the European Union’, Collected Courses of the Academy of European Law1995, Vol VI-1 (The Hague, Kluwer, 1998) 41; see also and J-C Piris, ‘L’ Union européenne a-t-elle une constitution? Lui en faut-il une?’, RTDeur,1999, 599.
constitutional narrative deals with a variety of related issues, all of which touch upon topics labelled ‘constitutional’. The notion of ‘European con- stitutional law’ is a chameleon concept,45which changes its skin, body and even its existence, according to the perspective and the politics or beliefs of the observer. Moreover, there seems to be a linguistic and national precon- ditioning in the tendency to describe the Community legal system and its development in constitutional terms. As Jacqué has indicated, the concept of constitutionalisation ‘est d’origine anglo-saxonne’,46 but it has been embraced by others, possibly mostly by German scholarship.47
Most often the notion of constitutionalisationof European law is used to denote the process of the transformation of the Treaties into a charter of a constitutional nature governed by a form of constitutional law rather than by the tenets of classic international law. The constitutional language then reaches far beyond the idea that the Treaties form the constitutional char- ter of an international organisation, in the sense that, say, the UN Charter constitutes the constituent document of the UN. The European Constitution not only deals with the European level of the European con- struct as the Community’s internalConstitution,48but also with the rela- tionship between the European level and the Member States, and with the effects of Community law within the constitutional order of the Member States. The making of a Constitution for Europe includes, amongst other things, the emergence of European law as a constitutionally superior law with immediate effects within the legal space of the Community, and therefore also doctrines as direct effect, supremacy and the protection of fundamental rights.49
More recently, the discussion has changed: the drafting of the Constitution for Europe has become the talk of the day. It has become bon ton. But where the notion of ‘Constitution’ used to be common to Community lawyers and denote an integration friendly attitude, it is now often used with the opposite reflex to protect State sovereignty and estab- lish legally enforceable limits to European integration. The discussion on the drafting of that European Constitution will be discussed in Part 3.
45 See F Snyder, ‘Constitutional law of the European Union’, in Collected Courses of the Academy of European Law, Vol IV-I, (The Hague, Kluwer International Law, 1998) 41, at 47.
While most commentators use constitutional language only in the domain of Community law, Snyder is concerned with EU constitutional law.
46 J-P Jacqué, ‘Cours général de droit communautaire’, Collected Courses of the Academy of European Law, Vol I, Book I, 1992, 49, at 265.
47 See A von Bogdandy, ‘A Bird’s Eye View on the Science of European Law: Structures, Debates and Development Prospects of Basic Research on the Law of the European Union in a German Perspective’, ELJ, 2000, 208.
48 Relating to, for instance, the relationship between the European institutions or the pro- tection of fundamental rights against abuse from the European institutions.
49 JHH Weiler, The Constitution of Europe (Cambridge, CUP, 1999) at 4, and more elaborate in his ‘The Transformation of Europe’, Yale LJ, 1991, 100, also in The Constitution of Europe, 10.
13.2.1.2. Constitutional Language in Legal Writing50
The initial view of constitutionalisation in Community law stems from the distinction between treaty and constitution, between international organisation regimes and constitutional federal systems.51These authors stress the fact that the Court of Justice has taken recourse to methods of interpretation which resemble those of a constitutional court, rather than of an international court. Other elements of the constitutionalisation process are the development of legal principles such as direct effect, supremacy and the protection of fundamental rights. The result is that the Community resembles more a federal type constitutional construct than an international organisation.
This element of constitutionalisation is not limited to the Treaty alone.
If the term constitutionalisation is appropriate in this sense, it is better to speak of constitutionalisation of Community law or the Community legal order than of the Treaty alone. All of the elements brought forward to describe the process of constitutionalisation relate to the whole of Community law, and not only the Treaty, even though within the body of Community law the Treaty serves as the basic norm, or in kelsinian parl- ance, as the highest norm in the pyramid.
Constitutionalisation, in a formal and positivist sense, means that the founding Treaties, like a veritable Constitution, have been placed at the top of the legal hierarchy. Like national Constitutions, they serve as the highest norm and define the conditions for the exercise of political power.
Community constitutional law, in this sense, is the internal constitution of the Community legal order at the Community level: it contains rules on the division of powers between the Community institutions, the decision making processes, the principles governing the relations between the institutions and so on. But from the point of view of Community law, the Treaty is also the highest norm of the entire polity which includes the national legal systems in so far as they come within the scope of Community law. Also the Member States and their organs are subject to
50 For a detailed analysis of the notion of ‘European constitutional law’ see J Gerkrath, L’émergence d’un droit constitutionnel pour l’Europe, (Brussels, Editions de l’Université de Bruxelles, 1997), 27–143; for a brief introduction see P Craig, ‘Constitutions, Constitutionalism and the European Union’, ELJ, 2001, 125, at 126–28.
51 JHH Weiler defines the ‘constitutionalism thesis’ as claiming ‘that in critical aspects the Community has evolved and behaves as if its founding instrument were not a treaty gov- erned by international law but, to use the language of the European Court of Justice, a constitutional charter governed by a form of constitutional law. Constitutionalism, more than anything else, differentiates the Community from other transnational systems and, within the Union, from the other “pillars”’, in ‘The Reformation of European Constitutionalism’, JCMS, 1997, 97, at 97–98; in this sense also E Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, AJIL, 1981, 1; GF Mancini, ‘The Making of a Constitution for Europe’, CML Rev, 1989, 595; JHH Weiler, ‘The Transformation of Europe’, Yale LJ, 1991, 2403.
the Treaties, just as the Community institutions. They too are bound by the highest norm of the polity, the founding Treaties. Yet, if European con- stitutional law is limited to this, is the constitutionalisation of the Treaties anything other than a re-statement, in constitutional terms, of the princi- ple that pacta sunt servanda? It would appear that constitutionalisation is more. It means that, even withinthe national legal orders of the Member States, the Treaties and Community law in its entirely are to be applied by all the organs of the State with precedence over national law. The national courts are under a European constitutional obligation to enforce Community law against the other organs of the State, notwithstanding the national Constitutions. The constitutionalisation of the Treaties is accordingly often identified with unconditional supremacy, the position- ing of the Treaties as the highest norm of the Community polity, over and above the national Constitutions.
The notion of European constitutional law, then, is used with various meanings. First, and adopting a broad perspective and fusing different layers, national and supra- or international, the notion may be used to denote the fertilisation and cross-fertilisation of principles of a constitu- tional nature in Europe and the emergence and development of a com- mon constitutional tradition. It then focuses on the common constitutional principles that exist or develop through the working of the Council of Europe, the EU/EC and the relations between their Member States. It describes the process of the infusion of constitutional values and principles into constitutional documents, or in the case law of (constitu- tional) courts. ‘The European Constitution’ or ‘European constitutional law’ then contains not only the principles common to the European States, which move back and forth from one system to the other, but also the principles deriving from common membership of international organisa- tions. It contains the ECHR and the practice and case law of the Strasbourg organs, the case law of the Community organs and the princi- ples deriving from national constitutions.
Even leaving aside the Council of Europe and its legal heritage, and remaining within the framework of the European Union and Communities, the notion has varying meanings. National constitutional law, whether purely national or related to European law is often entirely excluded. The focus then is on the European level and no account is taken of the other, national, side of the coin. ‘European constitutional law’ would then mainly concentrate on institutional law (composition and organisation of the institutions, competences, decision making pro- cedures and the like). The protection of fundamental rights against abuse by the European institutions is often included, as are issues as direct effect, supremacy and fundamental rights protection against the Member States in the scope of Community law. These issues are con- cerned with the relationship between European and national law, but
only from a Community law angle. While a complete picture of this mutual relationship can only be acquired by looking at both perspec- tives, the European and national perspectives, a discussion of this aspect is often limited to the one, European, perspective, thus omitting part of the reality.
Conversely, the notion of European constitutional lawis sometimes, pri- marily in French doctrine,52used to indicate those principles and provi- sions of nationalconstitutional law which concern European law, transfer of powers arrangements, rules on effectiveness and hierarchy of norms and so on. Again, this is too narrow a perspective to grasp the reality.
Constitutionalism then is a consequence only of the fact that international law is recognised by the national Constitution and given its place in the national constitutional legal order.
The notionEuropean constitutional lawmay also be used to describe the image of a co–existence of Constitutions, the existence of two, or rather 16 Constitutions, side by side, which ‘constitute’ the legal order(s) in the European area. When considering ‘the European Constitution’, the national Constitutions cannot simply be left out. Whatever the nature of the Treaties and the legal order they establish, they do not make tabula rasa of the national Constitutions, which continue to be critical not only in those areas which have not been transferred to the European institutions, but also within the scope of the Community and the Union. Ingolf Pernice names this presentation of European integration as a dynamic process of constitution-making instead of a sequence of international treaties estab- lishing an organisation of international co-operation multilevel constitu- tionalism.53According to this strand the European Union already has a multilevel Constitution, made up of the Constitutions of the Member States bound together by a complementary constitutional body consisting of the European Treaties, a Verfassungsverbund.54Others too have used the idea of complementary constitutions, or of a multi-layered Constitution.
It presupposes cutting the umbilical cord connecting the Constitution and
52 It forms, then, part of ‘le droit constitutionnel international’ which denotes ‘les dispo- sitions consacrées aux relations internationales et au droit international par les Constitutions’, see J Rideau, ‘Constitution et droit international dans les Etats membres des Communautộs europộennes. Rộflexions gộnộrales et situation franỗaise’, RFDC, 1990, 259; the term was proposed by L Favoreu at the 1988 Colloque sur l’Ecriture de la Constitution, see L Favoreu, ‘Le contrôle de la constitutionnalité du Traité de Maastricht et le développement du “droit constitutionnel international’”, 92 RGDIP, 1993, 39.
53 I Pernice, ‘Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-making Revisited?’, 36 CML Rev, 1999, 703; I Pernice, ‘De la constitution composée de l’Europe’, RTD Eur, 2000, 623. This conception is related to the idea of con- stitutional pluralism put forward by Neil Walker, ‘The Idea of Constitutional Pluralism’, MLR, 2002, 317.
54 I Pernice, ‘Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-making Revisited?’, 36 CML Rev, 1999, 703, at 707.
the Nation-State55and it requires taking a step back from the realm of the national or European legal order56in order to obtain a broad view of the entire constitutional landscape.
And then, all of a sudden,57constitutional language sprang up in polit- ical circles and is now very much en vogue.58 Nevertheless, it is not the same as the one which had become common among EC lawyers. Indeed, the talk of the day is the drafting and adopting of a constitutional docu- ment. In other words, the Constitution is not yet in place; it does not yet exist: it is constitution-making ‘in its true sense’. The European Parliament had already made efforts to draft a Constitution for the European Union, but those were, after having been adopted by a vast majority in the European Parliament, disposed of easily and quickly for- gotten.59This time, ‘there is a political and intellectual stampede to embrace the idea of a constitution for Europe’.60 The debate was initiated in the speech made by Joshka Fisher in May 2000 at the Berlin Humboldt University,61 and followed by speeches of Chirac, Ciampi and others. Following a dec- laration on the future of the Union, adopted at the occasion of the adop- tion of the Treaty of Nice in December of the same year,62the European Council adopted the so-called Laeken Declaration, in which the funda- mental constitutional questions facing the Union were set out and which stated, under the heading ‘Towards a Constitution for European Citizens’that
‘The question ultimately arises as to whether this simplification and reorganisa- tion might not lead in the long run to the adoption of a constitutional text in the Union. What might the basic features of such a constitution be? The values which the Union cherishes, the fundamental rights and obligations of its citizens, the relationship between Member States in the Union?’ The European Council
55 See eg B de Witte, ‘The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty Revision Process’, in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002), 39; J Gerkrath, L’émergence d’un droit constitutionnel pour l’Europe, (Brussels, Editions de l’Université de Bruxelles, 1997), at 117: ‘L’édifice constitutionnel européen se construit en effet simultanément au niveau européen et au niveau national’.
56 Even the ‘European’ legal order is multi-layered, consisting of different forms of cooper- ation in one organisation, each having their own intensity of constitutionalism.
57 ‘All of a sudden’ is a bit of an overstatement. The debate was prepared for instance by the Convention on the Charter of Fundamental Rights, in various statements of European institutions, in legal writing etc, see A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory (The Hague, Kluwer, 2002) at 75 et seq.
58 A Verhoeven, The European Union in Search of a Democratic and Constitutional Theory, (The Hague, Kluwer Law International, 2002), at 75.
59 Draft Treaty on European Union, approved on 14 February 1984, [1984] OJ C 77/33; Draft Constitution, adopted on 10 February 1994, [1994] OJ C 61/156.
60 JHH Weiler, ‘A Constitution for Europe? Some Hard Choices’, 40 JCMS, 2002, 563, at 563.
61 J Fischer, ‘From Confederacy to Federation. Thoughts on the finality of European inte- gration’, 12 May 2000, Humboldt Universitọt, Berlin.
62 Declaration on the Future of Europe, included in the Final Act of the Conference that adopted the Treaty of Nice on 11 December 2000,