Constitutional Mandate25
Under the internationalist doctrine, the Community Treaties and the law deriving from them preserve all characteristics of the sphere they originated from, namely international law, and Community law takes precedence if and in so far as national law provides it. The courts will enforce the pre-eminence of Community law if and in so far as they have
Community legal order and its relation with the national legal orders, presenting alter- native theories, see C Richmond, ‘Preserving the Identity Crisis: Autonomy, System and Sovereignty in European law’, in Constructing Legal Systems: ‘European Union’ in N MacCormick (ed), Legal Theory, (Dordrecht, Kluwer Academic Publishers, 1997) 47; a sys- tems analysis may be found in I Maher, ‘Community Law in the National Legal Order: A Systems Analysis’, JCMS, 1998, 238; a Hartian view is presented in Jones, ‘The Legal Nature of the European Community: A Jurisprudential Model Using HLA Hart’s Model of Law and Legal System’, 17 Cornell International Law Journal, 1984, 1; an orders approach is presented by DR Phelan, Revolt or Revolution. The Constitutional Boundaries of the European Community, (Dublin, Round Hall, 1997).
24 The focus on the intervention of courts – on pathology – presumes that there are instances where Member States intentionally or by oversight violate the Treaties. If they would not, there would not be any need for theories like direct effect and supremacy.
25 The notion may be somewhat confusing in that the internationalist doctrine often leads to national or even nationalist solutions. It merely refers to the school of thought which applies the classic principles of international law, under which it is national (constitutional) law which decides on the effect and rank of treaty law in the domestic legal order. The result can be very nationalist, if no precedence of treaties is provided for; it does not have to be.
been granted a constitutional mandate to that effect. Most of the Constitutions of the six original Member States were not adjusted in order to comply with the case law of the Court of Justice on the nature of Community law and its supremacy, especially in the dualist countries Germany and Italy, and in Belgium. One solution could have been to adopt a provision in the Treaty requiring the Member States to adjust their Constitutions so as to provide for the direct effect and supremacy of Community law and/or to empower the courts to enforce Community law with precedence. This solution was not adopted; on the contrary, appears not to have during the negotiations the subject come up. The issue did take an important place in the national constitutional debates.
There were more general debates in several Member States about mod- ernising their attitude towards international law and adjust it to the requirements of modern international society. The Dutch Constitution was modernised and an explicit judicial review mandate was included in 1953 following the French example of the 1946 Constitution. The Dutch participation in the ECSC was an important factor in the debate. In turn, the drafters of the 1958 Constitution of the Fifth Republic pointed to the Dutch Constitution as an example of a modern Constitution well adjusted to modern international relations. In Belgium, there was a strong doctrinal movement prompting a change of mind in the direction of monism and a constitutional mandate for the courts to enforce the pre-eminence of international law.26 A constitutional revision was envisaged several times.27In Luxembourg, an international movement28manifested itself in
26 Henri Rolin spoke of the ‘caractère exceptionnellement rétrograde des conceptions prévalent dans la jurisprudence’ in the beginning of the nineteen fifties i.e.the dualist conception leading to the pre-eminence of the subsequent statute over a conflicting treaty provision, H Rolin, ‘La force obligatoire des traités dans la jurisprudence belge’, (1953) JT, 561; He urged those working on a revision to adjust the Constitution to the modern international society, after the example of the French and the Netherlands Constitutions; Rolin’s plea for a change of attitude was also voiced by Hayoit de Termicourt and Ganshof van der Meersch, ‘La Constitution belge et l’évolution de l’ordre juridique international’, (1952) ADSP, T XII, 332, at 350ff and lead, in the absence of express constitutional reform, to a silent revision of the Constitution in the case law, see infra.
27 Déclaration de révision of 1954, Moniteur belge/Belgisch Staatsblad 14 March 1954, 1892; Déclaration de révision of 1958, MB 30 April 1958, 3284; Déclaration de révision of 1965, MB 17 April 1965, 4143; Déclaration de révision 1968, MB 2 March 1968, 2051;
see on this last proposed revision of the Constitution WJ Ganshof van der Meersch,
‘Réflexions sur le droit international et la révision de la Constitution’, mercuriale prononcée à l’audience solennelle de rentrée de la Cour de cassation le 2 septembre 1968, (1968) JT, 485; The express constitutional embracement of monism and the supremacy of the international legal order, along with the judicial review mandate to sanction it were originally thought indispensable in order to achieve a change of atti- tude. Later, such express constitutional mandate was considered superfluous; it was never adopted.
28 The Luxembourg Chamber in 1965 however rejected a proposal tabled by the Government to insert a provision in the Constitution declaring the supremacy of inter- national treaties over national Acts of Parliament and all other provisions of national law.
the case law of the courts, including the Cour supérieure de justice.29In Italy and Germany, traditionally truly dualist States, the post war Constitutions did provide for the pre-eminence of general or customary international law. Yet, the internal effect and the supremacy of interna- tional treaty law was not expressly provided for in the Constitution, despite their internationalist disposition. Consequently, conflicts between treaty law and internal law were addressed along the existing lines.
There was accordingly a mood of change in all the Member States,30 and it may seem surprising, that no provision was made in the Community Treaties, at the time of their negotiation or ratification, obliging the Member States to amend their Constitutions so as to ensure the uniform application and the effet utileof Community law.
Other Member States, which acceded to the European Communities or the European Union after Van Gend en Loos and Costa ENEL, had the advantage that they ‘knew what they were getting in to’. Some of them did arrange their constitutional provisions in order to provide for supremacy and what it entailed for the national courts, such as Ireland.
Now, as is clear from the overview of the national positions prevailing in the 1950’s and 1960’s in the Member States, it was clear that applying the rules of traditional international law to the Community treaties would lead to disparities in judicial protection and in the enforcement of Community law. Community law could be more binding on some States than on others. It was therefore important to convince the national courts that Community law was to be treated differently than ‘ordinary’ inter- national treaty law. If the national rules on the relationship between inter- national law on the one hand and international law are removed from the equation, arguments must be adduced to support the supremacy of Community law, irrespective of the national Constitutions.31
The Chamber took note of an internationalist tendency in the courts to the same effect, but deemed it immature to fix it in constitutional text, see WJ Ganshof van der Meersch,
‘Le droit communautaire et ses rapports avec les droits des états membres’, in WJ Ganshof van der Meersch (ed), Droit des Communautés européennes, Les Novelles, (Bruxelles, Larcier, 1969) 41, 67.
29 Cour supérieure de justice (cass.),14 July 1954, Pagani, Pas. lux., XVI, 150; case note by P Pescatore, JT, 1954, 697. The Cour supérieureheld that a treaty has a higher rank than an Act of Parliament since it derives from a higher source than the will of an internal body.
Conflicts must therefore not be solved on the basis of the lex posteriorrule, but rather in accordance with the lex superior derogat inferiorirule.
30 Eric Stein spoke of a trend towards the acceptance of supremacy of treaties, E Stein,
‘Toward Supremacy of Treaty – Constitution by Judicial Fiat in the European Economic Community’, Riv.Dir.int., 1965, 3, at 20.
31 See WJ Ganshof van der Meersch, ‘Le droit communautaire et ses rapports avec le droit des états membres’, in WJ Ganshof van der Meersch (ed), Les Novelles, Droit des Communautés européennes, (Bruxelles, Larcier, 1969) 41, at 53 et seq; other early contributions concerning the theoretical foundations of supremacy include M Gaudet, Conflits du Droit Communautaire avec les Droits Nationaux (Nancy, Publications du Centre européen Universitaire, 1967); R Lecourt, Le juge devant le Marché commun, (Genève, Institut