Van Panhuys employed the concept of ‘mandate’in a set of articles pub- lished in the mid-sixties, on the interaction between international and national scenes of law.2Van Panhuys’ aim was to present an alternative to
1 But see P Mengozzi and P Del Duca, European Community Law from Common Market to European Union, (Dordrecht, Nijhoff, 1992) at 71; B Walsh, ‘Reflections on the Effects of Membership of the European Communities in Irish Law’, in F Capotorti et al., Du droit inter- national au droit de l’intégration. Liber Amicorum Pierre Pescatore, (Baden-Baden, Nomos, 1987) 805, at 807: ‘(..) within this sphere[of transferred competences, MC] when the Irish judge is applying or interpreting Community law he has in effect ceased to be a national judge and has become a Community judge. While this view may not be acknowledged by every Member State in the Communities (..) it is, however, a view which I think most Irish judges would accept as correct’.
2 HF van Panhuys, ‘Relations and interaction between international and national scenes of law’, Recueil des Cours de l’Académie de Droit international(1964)II, 7; HF van Panhuys, ‘De verhouding tussen het volkenrecht, het Gemeenschapsrecht en het recht der lid-staten in het licht van het mandaat van rechters’, in HF van Panhuys et al., De rechtsorde der Europese Gemeenschappen tussen het internationale en nationale recht, (Deventer, Kluwer) 13.
the traditional conceptions of the relation between legal orders, namely monism and dualism.3His critique of the conventional approach was that it was flawed in viewing law as a system, as a set of rules establishing standards by which to define in an abstract manner the legal quality that rules of an international nature should possess. Instead, he advocated an approach to the study of international law aimed primarily at the func- tioning of rules introduced and applied either domestically or interna- tionally. By looking at the problem of the relation between legal orders from the perspective of the specific mandateof the authority involved, a more realistic and comprehensive picture would emerge. In his articles, he sketched the environment in which international and national judges act, as the ‘scene’ or ‘sphere’ on which they appear, representing them as a stage for a play, partitioned into a number of other scenes. The audience – the readers – were placed outside these spheres and are given an over- all view of the ongoing play. By choosing the perspective – or rather, the scene and the actor – and being aware that it is a choice of only one pos- sible perspective – the intricacies of the relations between legal orders and the actors acting in them emerged.
He attempted to illustrate the relationship between municipal and inter- national law by reference to a play produced in the Netherlands at the occasion of the commemoration of the 400th birthday of William the Silent.
For the play, a horizontal partition of the stage made it possible for the audience to look at two scenes at a time, so that it could simultaneously see what was going on in the Spanish headquarters as well as in the Beggars’
League. This construction of the scene inspired Van Panhuys to illustrate the relation between the ‘scenes’ of international and national law, with the additional complication that within each scene a further subdivision would have to be made: while international law knows of regional and other subsections, the variety of municipal legal systems is proportionate to the number of States. The partition of the scenes was by no means watertight: there was a continuous intercommunication between them and actors playing a role on one stage also appeared on the other.
Van Panhuys then proposed to shed light on only certain aspects of the immense issue of the relationship between legal orders, by choosing a particular viewpoint: that of each of the dramatis personaeon the different scenes. Each chapter would be devoted to a specific category of actors, among which international courts, domestic courts, legislators and
3 Van Panhuys stated that from a logical point of view, that is if law is to be an objective structure of legal norms from which inductions and deductions can be made by pure logic, there seems to be no tertiumbetween the dualist and monist conceptions, and that those pretending that an intermediate position was possible only camouflaged a monist or dualist point of view, see HF van Panhuys, ‘Relations and interaction between inter- national and national scenes of law’, Recueil des Cours de l’Académie de Droit international (RCADI), 1964-II, 7, at 14.
individual as the jeune premier. Each of these actors was distributed a mandate by the master mind of some visible or invisible stage-manager.4 A judge’s mandate consists, in general terms, in applying the law. But the mandate of a court to apply the law should by no means be identified with the legal system to which these rules belong: the mandate given to the courts of State A may imply a duty to apply certain rules belonging to the legal system of State B; yet, it does not say that to that extent the courts of State A are in the possession of a mandate given by State B.
The term ‘mandate’, crucial in his exposé, denoted ‘the contractual or quasi- contractual relationship between the person, who has accepted to exercise a specific public authority/function and he who has created the function’, in the case of national courts the State. If a person enters into the service of a State, for example as a judge, he contracts, or quasi-contracts, a relationship between himself and that State. For international organs it would be the community of States which, mostly on the basis of a treaty, has created the international function. In a figurative sense, he went on to explain, the ‘mandate-relation’
implied certain duties on the part of the principal, such as the obligation to pay a salary and supply the necessary facilities on the one hand and the commitment for the person employed to duly exercise his function on the other. These duties, and the concomitant rights constitute only the formal aspects of the relation. In contrast, the substanceencompassed the rules and principles by which the person concerned must be governed in the fulfil- ment of his task. ‘This substantive part of the mandate-relation must be filled in either by reference to legal provisions, mostly scattered throughout the Constitution and subordinate legislation, or by reference to general principles to be derived from the legal system as such’, while the mandate of international judges was determined, as far as its substance was concerned, by rules of international law, for the greater part contained in treaties.5
Now, within a given legal order, the functions of persons holding a pub- lic office within that order was defined by their ‘mandates’. In appropriate cases, the mandate of a court may imply the duty for these authorities to apply legal rules pertaining to other scenes. In such cases, their ‘function’
may be said to be multiple, according to the origin of the rules to be applied. The source of the mandate, however, remains the same in all cases, and originates from the scene they belong to. But while there is only one mandate, acts performed under it may have effects on different scenes.
In Van Panhuys’ view, the focus on mandates of the individual actors rather than on scenes of law, would offer a more realistic impression of the relation between legal orders and of courts therein. It is within the limits
4 This is where Van Panhuys’ image diverges from the reality of the relations between national and European law in the hands of national organs: the ‘neutral’ mastermind or stage manager is missing.
5 HF Van Panhuys, RCADI, 1964-II, at 9.
of their mandate that the courts may or must individualise or create law. If the mandate imposes upon a municipal court the duty ‘to apply interna- tional law’, this means in fact that the court, in individualising or creating law, may base its decisions on international sources of law. The authorisa- tion to apply international law extends the range of allowable sources.
Van Panhuys identified two problems with his approach: first, there was the problem of how to construe the substance of the ‘mandates’ in the absence of written and unequivocal rules. Though his initial aim had been to offer an alternative to the monism-dualism divide, he had to admit that the whole discussion would re-surface when defining the substance of the mandate: It would be of importance to know whether the mandate had adopted a dualist or monist conception. But the view did have the advan- tage of taking from the logically irreconcilable antithesis between monism and dualism its dogmatic flavour, and to reduce it to practical devices. If a legal order is said to be dualist, this simply means that the courts are only empowered to base their decisions on international sources if these have been re-enacted by the laws of that State. The notion of transforma- tion – read into the credo of the dualist school – would no longer be indis- pensable. Second, there remained the issue of whether or not a conflict between two mandates was possible or, as was more likely, between a mandate on the one hand and what Van Panhuys referred to as an ‘imper- ative directive’ addressed to the mandatory in question emanating from outside the legal order to which the mandate belongs, on the other.6
In the application of his theory to Community law, Van Panhuys was not entirely explicit. Writing after Van Gend en Loos but before Costa v ENEL, Van Panhuys argued that the national mandates of the domestic courts were not dramatically pushed aside by a contrary commandema- nating from the law of the Community. He read Van Gend en Loos as implying that Article 12 of the Treaty (old) must be enforced by the national courts, unless its penetration into the legal systems of the Member States was thwarted by general constitutional rules or principles prevailing under these systems. ‘This would mean e.g. that in Italy, where a statute may derogate from an earlier treaty to which Italy is a party, and assum- ing that this principle will be maintained under Italian constitutional law even in respect of the law of the Communities, the Italian courts remain bound to apply the later statute. For it is from the Italian State that the Italian courts hold their mandate, and it would be hazardous to maintain that this mandate would allow a deviation from a clear intention of the Italian legislature acting within its constitutional boundaries’.7 In an article written after Costa v ENEL he defended the view that the conception of Community law as expressed by the Court of Justice implied an obligation imposed on
6 Van Panhuys, RCADI, 1964-II, at 15.
7 Van Panhuys, RCADI,1964-II, at 30 (my emphasis).
the Member States to adjust their constitutional system to the new con- ception. The choice for the Italian legal system, he said, was between a silent revision of the judicial mandate by virtue of Article 11 of the Constitution or a formal amendment of the Constitution, introducing the appropriate mandate expressis verbis.8
The concept of ‘mandate’ may be useful to describe the situation of the national courts in the context of European Union law. In the picture as described by Van Panhuys, judges are in a mandate-relation with their State, which also defines the rules and principles by which the mandate must be executed. The State may also mandate the courts to apply interna- tional law, either as such or upon re-enactment; and this mandate may be filled in either by reference to legal provisions or by reference to general principles to be derived from the legal system as such. However, in some cases the imperative peremptory directives impose themselves even irre- spective of the national mandate. Examples would be certain peremptory norms of international law such as the Nuremberg principles, prohibition of and responsiblity for war crimes at the level of general international law, and, at the level of regional European law, human rights and ‘the peremp- tory norms of Community law’.9In such cases, the national mandate would no longer be decisive. In this way, international law may penetrate into the scene of national law regardless of the national mandates concerned. This penetration could not be reasoned away by dualist arguments.10
‘Community law has thus created a mandate for Community judges, as well as a complementary one for national judges’.11 The ‘Community mandate of national judges’ would then denote the concrete instructions and com- mands deriving from Community law and voiced by the Court of Justice:
‘review national law and set it aside in case of incompatibility’, ‘interpret national law in conformity with Community law’, ‘to hold the State liable in damages for harm done as a consequence of a violation of Community law’, without making a statement about the formal mandate-relationship.
The ‘national mandate’would in this approach denote the duties and obli- gations imposed by national law, reflecting also the constitutional posi- tion of the courts within the national constitutional construct, i.e. their relationship with the other State organs.
Attractive in the image presented by Van Panhuys, is that it allows the spectator to gain a good view of reality, as he is allowed to retain his seat
8 Van Panhuys, ‘De verhouding tussen het volkenrecht, het gemeenschapsrecht en het recht der lid-staten in het licht van het mandaat van rechters’, in De rechtsorde van de Europese gemeenschappen tussen het internationale en nationale recht (Deventer, Kluwer, 1966) 13, at 26.
9 MJ van Emde Boas, Jonkheer Haro Frederik van Panhuys (1916-1976), Bibliographical Essay, (The Hague, T.M.C. Asser Institute, 1987) at 14.
10 Ibid., at 14.
11 Ibid., at 17.
in the audience. This was also the position chosen when the research for this book was conducted: that of a neutral observer, who does not choose a particular perspective, but is at liberty to alter perspectives and angles.
This does not imply that no choices can be made at all. But the aim will ultimately be to understand and reconcile positions, and to find solutions to conflicts which may arise, not by awarding precedence to one position, body or organ over the other, but rather by seeking a system which, with mutual agreement and understanding, is aimed at conflict avoidance, at peaceful co-existence.
1.2. Scelle’s ‘dédoublement fonctionnel’
In Scelle’s work,12the notion of ‘dédoublement fonctionnel’equally alludes to the schizophrenia of the national institutions or organs, which due to the inadequacy and deficiency of the international institutional frame- work are obliged to execute functions which would normally have to be exercised by international organs, in addition to their normal national functions. National organs accordingly become agents, or mandatories, of their proper national legal order and of the international legal order.
Scelle defined the phenomenon of dédoublement fonctionnelin the follow- ing manner: ‘les agents dotés d’une compétence institutionnelle ou investis par un ordre juridique utilisent leur capacité ‘fonctionnelle’ telle qu’elle est organisée dans l’ordre juridique qui les a institués, mais pour assurer l’efficacité des normes d’un autre ordre juridique privé des organes nécessaires à cette réalisation, ou n’en possédent que d’insuffisants’.13 The notion is not limited to the rela- tionship between Community law or international law and national law, but can also be used to explain relationships within a State. It is, however, in the context of international law in the municipal legal order that it finds application in the fullest sense.
Where organs of the internal legal order exercise functions pertaining to another legal order, Scelle stated, the content of the ‘compétences dédoublées’
would rarely coincide. For instance, national executive organs would have a more extensive legislative power on the international plane than would be the case in the national constitutional setting, and accordingly, the
12 G Scelle, Précis de Droit des gens, principes et systématique(Paris, Recueil Sirey, 1932-1934);
G Scelle, ‘Le phộnomốne juridique du dộdoublement fonctionnel’, in W. Schọtzel and H-J Schlochauer (eds), Rechtsfragen der internationalen Organisation, Festschrift für Hans Wehberg zu seinem 70. Geburtstag, (Frankfurt am Main, 1956) 324; L Kopelmanas, ‘La théorie du dédoublement fonctionnel et son utilisation pour la solution du problème dit des conflits des lois’, in La technique et les principes du droit public, Etudes en l’honneur de Georges Scelle(Paris, 1950) 753.
13 G Scelle, ‘Le phộnomốne juridique du dộdoublement fonctionnel’, in W. Schọtzel and H- J Schlochauer (eds), Rechtsfragen der internationalen Organisation, Festschrift für Hans Wehberg zu seinem 70. Geburtstag, (Frankfurt am Main, 1956) 324, at 331.
legislative powers of the national Parliament would be diminished. He termed this phenomenen ‘le déséquilibre du dédoublement fonctionnel’.
Scelle’s model has been followed by several authors. Canivet has also made use of the language of dédoublement fonctionnelin his description of l’office du juge national face au droit communautaire.14‘C’est bien évidemment sur le titre qu’il tient de l’organisation constitutionnelle de l’Etat dont il relève que le juge assied sa juridiction, même lorsqu’il applique les traités. Mais tant par les obligations procédurales qui lui sont faites que par les pouvoirs dérogatoires qui lui sont reconnus, sous le contrìle, voire les sanctions de la Cour de Justice, le titre de compétence du juge étatiques est ambigu. De cette ambiguãté inhérente à sa fonction, au carrefour des systèmes juridiques nationaux et communautaire, certains auteurs déduisent un dédoublement fonctionneldans le titre du juge selon qu’il exerce sa juridiction dans l’ordre interne ou dans le système des traités’. Canivet then exposed the complexities of the hypothesis. If the national judiciary in the framework of Community law operates as part of a supra-statal judicial organisation, this would entail a transfer of sover- eignty which, at least in the French constitutional context, would require a prior revision of the constitution. In any case, on the substance, the pro- found alteration and transformation of the judicial function modified the position of the judge in the constitutional setting, resulting in an expan- sion of the powers and duties of the national courts.
Grévisse spoke of a ‘dualisme juridictionnel’: a split has developed within every Member State in the person of the same judge, depending on whether he acts as on the basis of his national or his Community man- date.15 And entirely in line with the English traditions, Lord Slynn of Hadley spoke of national judges ‘wearing a Community law wig’.16
2. THE NATIONAL MANDATE OF THE COURTS
The mandate of the courts, the rules and principles by which the recipient of the mandate must be governed in the fulfilment of his task, are to be filled in, either by reference to legal provisions, mostly scattered through- out the Constitution and subordinate legislation, or by reference to gen- eral principles to be derived from the legal system as such.17From these norms, principles and traditions, there emerges an understanding of the courts’ role in the constitutional setting. The position of the courts is a
14 G Canivet, ‘Le droit communautaire et l’office du juge national’, Droit et Société(1992) 133, at 138.
15 F Grévisse and J-Cl Bonichot, ‘Les incidences du droit communautaire sur l’organisation et l’exercice de la fonction juridictionnelle dans les Etats membres’, in L’Europe et le droit, Mélanges en hommage à Jean Boulouis(Paris, Dalloz, 1991) 297.
16 Lord Slynn of Hadley, ‘What is a European Community Law Judge?’, CLJ (1993) 52, 234.
17 HF van Panhuys, ‘Relations and Interactions between International and National Scenes of Law’, Recueil des Cours, 1964-II, 7, at 9.